[Imports] Permission Statement

[Greg Troxel]

Brian May <bmay at mapwise.com> writes:

> On 3/12/2020 7:30 PM, Greg Troxel wrote:
>> Brian May <bmay at mapwise.com> writes:
>>
>>> We (OSM-US) should really have a state by state guide on open records
>>> laws per state. That would make the "license check" process
>>> easier. Look up the state, get an answer. At least a quick answer to
>>> start from.
>> Agreed in principle, but I think "open records" is off base.  The real
>> issue is copyright, not whether we have a legal right to demand map data
>> held by the government.
>>
> No, its not off base. Here's a reference for you:
> https://en.wikipedia.org/wiki/Microdecisions,_Inc._v._Skinner

In terms of OSM relying on things, we very much need the documents.
Thanks for sending pointers -- this is turning out to be a very useful
discussion.

The Microdecisions case is about Florida law, so that doesn't really
bear on other states -- but is great for Florida data.

I find this case also relevant:

  https://en.wikipedia.org/wiki/County_of_Santa_Clara_v._California_First_Amendment_Coalition

because the court basically said that copyright enforcement was
inconsistent with public records, despite a lack of statutory guidance.
But it's also a state court.

> This is the grey area and sounds like up for debate. However, as I
> understand it, the omission of copyright assertion is a waiving of
> copyright assertion. I am informed by the Microdecisions vs. Skinner
> case:
>
> "Additionally, the Court confirmed "Florida's Constitution and its
> statutes do not permit public records to be copyrighted unless the
> legislature specifically states they can be."
>
> But there could be further nuances I am missing.

Your interpretation was correct before 1976 or so.
Federal copyright law was changed signficantly in 1989.
  https://en.wikipedia.org/wiki/Berne_Convention

Now, creative works (other than works of the federal government and
"dicta" of any government) are subject to copyright at creation.  There
is no notion of "copyrighting" them.  There is a notion of registration,
which is necessary to enforce.  So any language that says "does not
permit records to be copyrighted" sounds like it is written pre-Berne.
(Further, state law that says "does not permit" is fuzzy vs
"prohibits".)

But I agree that if there "government may not copyright works" language
in state statute, then it is obvious that courts would hold that they
cannot a) register those works or 2) enforce.

Overall I think "declining to assert copyright is waiving it" is
entirely untrue post-Berne -- but it was true pre-1976.

>> In MA, one can get a copy of public records, and one can disclose the
>> information, but I see no right to copy, distribute, or to create
>> derivative works.  As an example my Conservation Commission publishes
>> trail maps.  Copyright is held by the town under the work-for-hire
>> doctrine, and there's no license to copy granted, other than the "it's
>> ok to print this out and use it" implied grant.
> So are you saying since MA public records laws do not specifically
> state that agencies can copyright data, that towns default to
> everything is copyrighted? I don't think so. But this is a grey area
> that needs to be further explored, maybe state by state. What is the
> spirit of the law in MA?

I was unclear on the details in MA.  Basically it's a non-issue, because:

  MassGIS grants broad permissions on their data generally, and they are
  willing to grant permission in email when the official terms are not
  100% ok for somebody.  There have been zero actual issues.

  For many other government records, nobody cares if those are
  redistributed.  The government only cares about secret vs public.

The only place where there is maybe an issue, which is relevant, is
trail maps from Conservation Commissions.  Those tend not to be marked,
and it also tends to be unclear where they got their data from (
generally MassGIS and local knowledge, walking trails with GPS, etc.).
However, I'm pretty sure very few if any of the ConComm adminstrator
have any interest in 1) enforcing copyright or 2) understanding if they
could.  But still, I have not copied from their maps.
 
I just found this (thank you for making me chase this down, quite
seriously!):

  http://www.sec.state.ma.us/ARC/arcres/residx.htm

which says:

  Those records created by Massachusetts government agencies and
  institutions held by the Massachusetts Archives are not copyrighted and
  are available for public use. Copyright for materials submitted to state
  agencies may be held by the person or organization that created the
  document. Patrons are responsible for clearing copyright on such
  materials.

but confusingly also

  The Archives requires patrons who copy materials for publication to
  complete a permission to publish form agreeing to use a standard
  citation for archival materials and to give a copy of the published work
  to the Archives. There are no charges for publication.

I'll ask them if this applies to all public records, and for a citation.
I'm sure they are all at home telecommuting with not much happening :-(

>> The phrase "allow governments to copyright" does not make sense since
>> that's not how copyright works.  If it were "prohibits the government
>> from enforcing copyright" and "prohibits the government from acquiring
>> data unless the government is authorized to grant licenses to
>> redistribute under CC0", that's something else.

> Yes it does make sense. States decide whether agencies can copyright
> data. Some specifically state you can, others state you can't and some
> don't mention copyright at all. The ones that don't mention copyright
> usually talk a lot about how data is open and there's no restrictions
> on the data, which means no copyright. But if they don't specifically
> address copyright, it muddies the water.

The "can copyright" language does not make sense in a post-Berne world.

"no restrictions" can often mean a broad license, vs not copyrighted
(e.g. the 2-clause BSD license in open source).  Many people confuse "no
restrictions" with the affirmative permission necessary to reproduce
copyrighted works.  In other words, under copyright law it is necessary
to have permission to copy, rather than the absence of being told you
can't.

However, I think when a government says "are not copyrighted", one has
to assume that means something like one of

  "the works, even if formally subject to copyright under US law, will
  be treated by the state as not subject to copyright, will not be
  registered, and no enforcement actions will be taken"

  the state government dedicates these works to the public domain

> Grabbing, aka writing code to extract data from a server. There has
> been previous discussion on this topic, specifically regarding
> OpenAddresses. I'm pretty sure they concluded copying data from a
> government server that is publicly exposed to the Internet means any
> copyrighting has been waived. That could be wrong, I don't
> know. Google is an obvious case as are most private companies. We're
> talking governments here.

This to me is a broad leap, without state-by-state analysis of
law/cases.  That is what I think it would be good if someone(tm) does.