[Talk-us] State Open Data

[Brian May]

On 8/12/2018 4:26 PM, Kevin Kenny wrote:
> On Sun, Aug 12, 2018 at 1:05 PM OSM Volunteer stevea
> <steveaOSM at softworkers.com> wrote:
>> I'm not an attorney, though were I to attempt to sharpen focus on these two replies, I'd say that in California, it's more like this:  data produced by state agencies (by our state government personnel "on the clock") publishing them as "produced by the state of California" cannot have onerous copyright terms/restrictions put upon them.  They simply "belong to the public."  (This is especially true of GIS data, as in the County of Santa Clara and Orange County/Sierra Club cases).
>>
>> So when you say "copyright...owned by the government," that is effectively equivalent to "copyright owned by the People of the state" because of California's Open Data laws and stare decisis (law determined by court precedence/findings).  Whether "public domain" is the correct legal term I'm not sure, but if there is a distinction between the legality of California-produced data and "the data are in the public domain" it is either very subtle or completely non-existent; I consider California-produced data "somewhere around, if not actually PD" and "fully ODbL-compatible" for OSM purposes.  So, (and I hope this dispels any confusion and answers your question, Pine), "created by the government" means they can't put "onerous copyright" on it, meaning it is effectively owned by the People for any purpose for which We see fit.
> TL:DR: The closest answer to Clifford Snow's original question for New
> York is http://gis.ny.gov/gisdata/inventories/details.cfm?DSID=932
> which is virtually certain (the law, as always is muddy) to be
> ODBL-compatible (and in fact, there is a colourable case that it is in
> the Public Domain.) The digital raster quads available from
> https://gis.ny.gov/gisdata/quads/ (these are State, not USGS!) are
> also a potential data source for tracing, and again, aren't deeply
> mired in the legal swamp.
>
> Of course, as people like Frederik Ramm are quick to point out, no
> imported data are truly safe! (In the US system, a deep-pocketed
> plaintiff can simply bankrupt the defendant before the conclusion of a
> civil suit, and the law is particularly murky in the
> copyright-friendly Second Circuit, which comprises New York, Vermont
> and Connecticut.)
>
> ----
>
> I already sent Clifford Snow a reply in private email, but this
> deserves to be elaborated more in public, given how the conversation
> has turned.
>
> I am not a lawyer either, but as a scholar I have had to learn some of
> this stuff.
>
> I live in the Second Circuit, and the situation with respect to State
> and local government works is complicated here. The confusion stems
> from a decision rendered by the Second Circuit in the case of _Suffolk
> County v First American Real Estate Solutions_ (261 F. 3d 179 (2001):
> https://openjurist.org/261/f3d/179/county-v-first). First American was
> a real estate multiple listing service that had acquired Suffolk
> County's tax maps under New York's Freedom of Information Law, and was
> republishing them without license to its participating realtors.
> Suffolk County, motivated by the desire for cost recovery for the
> maintenance of the tax rolls, sued for copyright infringement. First
> American moved to dismiss, on the grounds that the Freedom of
> Information Law extinguished any copyright interest that Suffolk
> County might have had in the product. The district court initially
> denied the motion. On petition to reconsider, the district court
> agreed with First American that the Freedom of Information Law
> requires that Suffolk County may not use whatever copyright subsists
> in the tax maps to restrict their republication.
>
> The Second Circuit held that the Freedom of Information Law is fully
> satisfied as long as the public has the right to inspect the
> copyrighted records, and that FOIL does not extinguish the possibility
> of a copyright claim. Since it was ruling on a motion to dismiss,
> there was no ruling on the facts of the case, so the judicial opinion
> did not reach the argument of whether the maps had sufficient
> originality to survive a claim under the _Feist v Rural_ (499 U.S. 340
> (1991) - https://en.wikipedia.org/wiki/Feist_Publications,_Inc.,_v._Rural_Telephone_Service_Co.)
> standard. Suffolk's initial argument appears to have been crafted to
> follow the 'sweat of the brow' standard. Nevertheless, the Second
> Circuit accepted that the originality claim was sufficiently pleaded.
> Nevertheless, the opinion recognized that 'items such as street
> location and landmarks were "physical facts"-and thus not protected
> elements" (_Suffolk_ at 24) and that in an earier case it had 'thus
> focused on "the overall manner in which [the plaintiff] selected,
> coordinated, and arranged the expressive elements in its map,
> including color, to depict the map's factual content."' No deference
> was accorded to a contrary advisory opinion from the New York State
> Committee on Open Government.
>
> The appellate decision remanded the matter to the district court for
> further proceedings; the matter of whether the tax rolls could be
> sufficiently original to meet the _Feist_ standard could not be
> reached because the evidence had not been adduced at trial. The
> parties then settled, leaving the matter under a legal cloud.
>
> The New York State Committee on Open Government continues to assert
> that the counties' treatment of GIS data as a profit center runs
> contrary to their duties under New York law: it so stated in advisory
> opinions to Nassau County in 2005
> (https://docs.dos.ny.gov/coog/ftext/f15695.htm) and to New York State
> Archives employees in 2007
> (https://docs.dos.ny.gov/coog/ftext/f16494.htm). While these opinions
> do not carry the weight of law, the open government laws enjoy fairly
> broad bipartisan support, and it seems rather unlikely that the full
> Legislature would overrule the committee, were such matters to be
> brought to the floor. The state administrative agencies have in large
> measure declined to assert copyright in their work product, and so
> state in the metadata files (with 'None' under 'Access conditions',
> and only an informal request to credit the source under
> 'Redistribution Conditions') For this reason, I've been confident in
> using State agency data sources with only a note in the 'Contributors'
> page on the Wiki.
>
> To dispel any confusion surrounding copyrights supposedly owned by
> localities, New York City in 2012 enacted Local Law 11
> (http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=649911&GUID=E650813B-B1E9-4E56-81BA-58261487DA4A),
> a broad mandate to release data to the public without further
> encumbrance on reproduction and publication. New York City datasets
> thus may be safely assumed free to use, and subsequent legislation
> (https://opendata.cityofnewyork.us/open-data-law/)  has only
> strengthened the provisions of the law. - including a requirement that
> any data compiled in response to a Freedom of Information demand be at
> least considered for inclusion on the city's open data portal. The
> existence of these laws is what emboldened me to PDF-scrape the city's
> maps of the watershed recreation areas to include them in OSM.
>
> In addition to New York City, fifteen counties so far have decided to
> give up the struggle and open their books, so GIS data on at least the
> tax rolls are available for the following:
>
> Cayuga
> Chautauqua
> Cortland
> Erie
> Genesee
> Greene
> Lewis
> NYC - Bronx
> NYC - Kings (Brooklyn)
> NYC - New York (Manhattan)
> NYC - Queens
> NYC - Richmond (Staten Island)
> Ontario
> Orange
> Rensselaer
> Sullivan
> Tompkins
> Ulster
> Warren
> Westchester
>
> at the New York State GIS portal. The remaining counties, it would
> appear, still cling to some hope of cost recovery for their deed
> registries through copyright licensure. These counties' data must be
> assumed to be off limits to us. I do personally feel free to use their
> plats AMONG OTHER SOURCES to cross-check public parcel boundaries,
> that's called 'research' rather than 'plagiarism'! Moreover, once the
> several sources have been cross-checked and integrated, any creative
> spark that the county may have ignited in its data has surely been
> extinguished.
>
> In addition, New York State makes freely available most of its data,
> including cadastral data for all State-owned parcels, even in the
> counties that restrict redistribution of their tax rolls.
>
> To the best of my knowledge, the Second Circuit is the only one to
> accord so little deference to open data laws and opinions of state
> agencies in states that have them. I expect that eventually, this
> difference will come before the Supreme Court as a circuit split.
> Given the likely makeup of the Court for the next generation or so, I
> don't expect that the ensuing decision will go well for the advocates
> of open data; there is simply enough public opinion that government
> policy should be informed more by cost recovery than by public
> service.
>
> This whole situation leaves New York's open data in rather a messy
> situation. There is no 'one stop shopping' of uniform quality for the
> highway data of the sort that Clifford envisions. Interstate, US, and
> State highways, and the major local highways that are eligible for
> Federal aid (and bear New York State Reference Route numbers) are
> available as open data
> http://gis.ny.gov/gisdata/inventories/details.cfm?DSID=1302.  In
> addition, there is a comprehensive street database of sorts, but the
> data are of much higher quality in the cooperating counties. I notice,
> for instance, that the apartment complex where my daughter lives (in
> nonparticipating Schenectady County), built about 3-5 years ago, is
> not on the map. The non-participating areas are still fairly accurate
> albeit outdated, and are at the very least better than TIGER. The data
> set in question is
> http://gis.ny.gov/gisdata/inventories/details.cfm?DSID=932. It is what
> informs the New York State digital raster topographic maps that are
> available at https://gis.ny.gov/gisdata/quads/ - which are more up to
> date than the classic USGS quads while not having the incompleteness
> issues of the newer USTopo series.
>
> The county street centerline data, in the participating counties, is
> generally quite good indeed, but care must be taken because the datums
> are not always consistent.
> http://gis.ny.gov/gisdata/inventories/results.cfm?themeIDs=24 indexes
> the county data sets.
>
> None of these data sets have very extensive coverage of
> privately-maintained roads, or of the roads in the wilderness areas.
> Many of these are obtainable from the DEC Roads and Trails
> https://gis.ny.gov/gisdata/inventories/details.cfm?DSID=1167 and
> Snowmobile Trails
> https://gis.ny.gov/gisdata/inventories/details.cfm?DSID=427 data sets,
> but I'm actually somewhat reluctant to mention these. The data quality
> of these is highly variable. Some tracks and trails have been updated
> quite recently. Others have apparently been digitized from maps of
> inappropriately large scale - perhaps even statewide maps - and are
> wildly out of alignment at useful scales in the field. I do render
> them on my own maps because any data is better than no data
> (particularly when looking for missing features to map in the field!)
> but call them out with a distinctive magenta colour to warn myself
> that they may not be accurate.
>
> Consider this an approximate 'brain dump', and make of it what you will.
>
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This may have been stated already, but just wanted to make it clear - 
State laws on public records filter down through all regional and local 
governments operating within the state. So if state law doesn't 
explicitly give a county permission to copyright data, and the county 
tries to assert copyright, the county is violating state law. If you can 
get a hold of the data, you can ignore whatever the county says. If you 
can't get the data and must get it from the agency through formal 
channels, you need to send a letter and explain the situation. If they 
don't respond favorably, try the state Attorney General's office. In 
Florida, the Attorney General weighed in on this issue in the mid-2000s 
because counties weren't getting the message after a court case 
clarified the that public records could not be copyrighted or sold at 
exorbitant prices in Florida for "cost recovery". At that time the 
Attorney General's office had an open records advocate that would help 
educate, communicate, and mediate with local governments about public 
records laws.

Brian