[Talk-us] State Open Data

[Kevin Kenny]

On Tue, Aug 14, 2018 at 4:31 PM Brian May <bmay at mapwise.com> wrote:
> 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.

You oversimplify.

I won't go through the complex history again - but:

New York's open records law is silent about a county's using copyright
to restrict the distribution of records that it is required to supply
free of charge. The US Court of Appeals for the Second Circuit held
that the state law's silence on the matter means that counties may
assert copyright on their work product, and explicitly refused to
accord deference to an advisory opinion from the state to the
contrary. Since Federal law governs on matters of copyright, it is now
settled that counties own their copyrights. The legislature could
amend the Freedom of Information Law to require that counties offer a
general public license or even  abrogate their copyrights, but it has
not done so.

This leads to the bizarre legal outcome where you can demand a copy of
any of Suffolk County's tax maps for your own use (if you can find the
plat number) but you may not copy the map yourself without violating
the county's copyright. (To the extent that the copyright is valid in
the first place. The court did not reach the facts of the case to
determine whether the works in question met the Feist standard.)

I am given to understand that there is a circuit split on the matter,
and in fact that the Second is the only Circuit to craft such a
loophole to open government laws. Recall that the Second is the
circuit where, for a time, it was held that West Publishing held
copyright on the page numbers in their court reporters, and that those
who wished to cite them in briefs owed West a license fee for using
the numbers. Fortunately, that fell when Bender v West was reheard en
banc.

The State government, and the New York City government, fortunately
for us, engage in no such nonsense. New York City's open government
law was drafted after Suffolk v First American and has explicit
language forbidding such games.