[OSM-legal-talk] Okay to trace from public-domain USGS DOQs?

Russ Nelson russ at cloudmade.com
Wed Feb 11 20:01:20 GMT 2009


Is it okay to trace into OSM from the public-domain USGS Topographic  
and DOQ (Digital Orthographic Quads) aerial imagery?  I think the  
answer there should be clearly "yes".

Now let me ask a question whose answer I think is still "yes".  What  
if those tiles came from Microsoft's Terraserver-USA WMS service (http://Terraservice.net 
) ?  Specifically, these two URLs:
http://terraservice.net/ogcmap.ashx?version=1.1.1&request=GetMap&Layers=DOQ&Styles=&SRS=EPSG:4326&format=image/jpeg&
http://terraservice.net/ogcmap.ashx?version=1.1.1&request=GetMap&Layers=DRG&Styles=&SRS=EPSG:4326&format=image/jpeg&

I'm not a lawyer, but here's the theory that I think applies:

There are no Microsoft trademarks in the WMS images, so trademark law  
does not apply (the tiles are marked "USGS").

There is no opportunity for contract formation -- not even a  
clickthrough -- so contract law does not apply.

Thus, we need consider only copyright law.  You can only claim a  
copyright on a creative work.  You cannot claim a copyright on a  
public-domain work to which you have applied no creativity.  Westlaw  
has managed to claim a copyright on their page numbering scheme for  
public-domain law (they do this because legal citations make reference  
to page numbers; this is their franchise).  Microsoft may possibly  
make a similar claim that the exact tiling offset they have chosen is  
not merely the natural tiling one would pick for tiles in a grid, but  
instead they have chosen one method out of many others for its grace  
and beauty.  I suspect, instead, that zero is at zero, making any  
claims of creativity suspect.  It's possible that the tiles are warped  
in a creative manner.  I know of nobody who has ever noticed that; and  
it would be noticeable.  It's technically feasible that they have  
modified the tiles by color-shifting, but there's no evidence of that.

But let's say that that theory is wrong, and Microsoft has a strong  
copyright claim to the tiles.  I'm not proposing that anybody  
redistribute, or even publicly perform the tiles.  I'm proposing that  
people use the tiles to extract facts about the world embodied by the  
original public-domain USGS works.  No portion of whatever theoretical  
changes Microsoft has made will be carried through.  The tiles, once  
examined, are discarded, and no portion of them is incorporated into  
OSM.

But let's say that THAT theory is also wrong (belt & suspenders).   
Microsoft has given an implicit license to use the works for analysis,  
criticism, and commentary.  But that is exactly what OSM users are  
doing.  Tagging is "commentary".  If there is any creativity to be  
found in the tiles, then the analysis will turn to criticism.  All of  
these are protected uses of a copyrighted work.

--
Russ Nelson - http://community.cloudmade.com/blog - http://wiki.openstreetmap.org/wiki/User:RussNelson
russ at cloudmade.com - http://openstreetmap.org/user/RussNelson





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