[Talk-us] Public Domain Non-GPS Data Question

Christopher Schmidt crschmidt at metacarta.com
Wed Feb 25 04:23:30 GMT 2009

On Tue, Feb 24, 2009 at 10:39:46PM -0500, Dale Puch wrote:
> Sorry, I typed without refreshing my memory.
> Here is a link that applies to California regarding state GIS data due to
> their public records act
> http://geodatapolicy.wordpress.com/2008/05/25/are-government-parcel-gis-data-subject-to-open-records-law/
These are 'Freedom of Information', yes, but they are *not* about
providing openly-licensed data. Do not confuse *access* to data with
rights for redistribution -- the latter is what matters with regards to
OSM uploads. The CA data, while required to be distributed under FOIA or
other similar requests, still can't be uploaded to OSM once you hav it,
because it is still a copyrighted work.

The newspapers don't have this problem, becasue the way they're using it
is to take the information from it, and use it in combination with
reseach to create a non-derivative product. OSM would be using the
information directly, which would be a violation of the copyright of the
data (Or could be, at least; I'm not a lawyer, but the law doesn't
requie that you be given redistribution rights.)

FOIA at the state level is kind of weird for this reason: in many cases,
you can get ahold of the data, but after you have it, yo ucan't *use*
it. FOIA at the national level is not similarly limited due to the Federal
Works Can't Be Copyrighted principle.

> For Florida http://www.rcfp.org/newsitems/index.php?i=4084

Florida is special: like the US Government, they have a statewide "State
material can't be copyrighted" (though they have an 'unless approved by
a 2/3rd vote in the legislature' caveat).

> That is what I was thinking of.  So I was wrong and it is not federal law,
> but state law that has been used to free the gis data in several cases.
> For Florida it is referred to as "freedom of information" and that is what
> got me going in the wrong direction.

Right, but 'free' as in 'available' and 'free' as in 'freely licensed'
are two different things. "Free" under state-level FOIA does not
neccesaily -- or even generally -- mean the latter. It means you can get
access to the data.

Essentially, this is the difference between saying "You can buy a copy
of a book" and "You can publish the book on the internet under an open
license". Clearly, the former is typically possible -- but states are
trying to restrict it for various, mostly silly reasons. This is what
FOIA is about -- You have to be able to *buy* the book for a reasonable
cost. This means you can't use FOIA requests to fund your GIS
department by saying that consumers have to pay the $150k the data took
to collect; this has been what states have been trying to do,
essentially, forcing a cost recovery scheme down the throats of
consumers of the data. This is being uniformly struck down in almost
every case, and states are being forced to distribute for cost of

So long as the data is still copyrighted though, you can't upload it to
OSM -- in the same way you can't scan and upload John Grisham's latest.

> Some further reading might be:
> http://www.sgsi.com/MIUserGroup/PublData.htm

Having read this, it seems like they really don't understand copyright.
The whole section on "The agency agrees to provide the data but also
declares that it is copyrighted and that you cannot even give away the
data." seems entirely ignorant of copyright law. I am, again, not at all
a lawyer, but being confused by things that are clearly simply the way
that copyright works is not a real positive sign. (The rest of it,
however, is perfectly fine, and a reasonable set of

> other state specific information
> http://www.judicial.state.sc.us/opinions/HTMLFiles/SC/26505.htm

"We affirm the circuit court�s finding that, while public information
must be granted pursuant to FOIA, a public entity may restrict further
commercial distribution of the information pursuant to a copyright."

In other words, you can get it, but you can't upload it to OSM.

> http://dls.state.va.us/pubs/legisrec/2004/FOIA3.htm

"The subcommittee next discussed the issue of copyrighting GIS
information. A representative of the Office of the Attorney General
indicated that copyright protection is not available for protecting
fact, but compilations of fact are copyrightable. He noted, however,
that commercial interests want the underlying data contained in GIS that
cannot be copyrighted"

This is a much more narrow take than OSM as a project typically takes.
This is why we do not copy street names from Google Maps, even when we
have all the other data -- because the OSM project has a policy to treat
databases of GIS data as copyrightable at this point. It would be best
not to depend on this legally untested point for reasons to upload data
to OSM.

> http://geodatapolicy.wordpress.com/2008/07/17/city-of-new-york-v-geodata-plus-copyright-tax-maps-and-public-access/

An interesting case if it was ever resolved, but the posting is simply
saying "This is an interesting case". I'd be interested in followup on
this one personally, but it falls under the same realm as the above --
even if in US jurisdictions, copying data an redistributing is okay,,
this is not okay within OSM.  

> http://www.mrsc.org/Subjects/Planning/gis/updatepd.aspx

Not entirely clear which part of this is relevant, but doesnt' seem to
contadict any of the above.

> It would appear that Michigan has specifically allowed charging for the data
> and restricting its distribution.  see the access policy, license and fees
> http://www.eatoncounty.org/Departments/Eaton_County_Infomation_Systems/Eaton_County_GIS_Portal/GIS_Data.htm


In summary:
 * US Government Work: Public Domain
 * Florida Government Work: Public Domain
 * Most places: Can get *access* to GIS data -- often for a fee,
   occasionally for free.
 * Many places: GIS data is considered copyrightable
 * Any places not specifically mentioned: Unless there is 
   a clear statement of rights that makes it clear that it is okay to
   OSM, it's best to ask. Even *if* there is, it's often still best to
   ask, because it can help you get your local GIS people interested in

One more time: This is personal opinion, does not reflect on any legal
opinion, nor on the legal opinions of MetaCarta or any of its
subsidiaries or stuff like that. Just want to make clear the distinction
between 'free' as in 'access' and 'free' as in 'license'. Generally
speaking, if you have to pay for the former, you're likely going to run
into someone who's arguing against the latter...

Christopher Schmidt

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