[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
More information about the legal-talk
mailing list