5
Legal Analysis

5.1 INTRODUCTION

Although many of the issues discussed in this report are questions of policy, that is, how the government should acquire geographic data, there are a number of legal rights, on the one hand, and constraints on the other, that affect the manner in which government can acquire data. This chapter examines the laws that affect government licensing of geographic data and works.

The first section discusses intellectual property law as it applies to geographic data and works, and is concerned primarily with the rights of data providers and limits on those rights embodied in intellectual property doctrines. Mainly, those limits are concerned with balancing incentives for the production of intellectual works against the interest of the public in the free flow of information.

A discussion limited to intellectual property law would be income-plete, however, since data providers are increasingly turning to licensing to preserve and enhance the commercial value of their geographic data, which are increasingly at risk of wholesale copying as datasets and products are made available online. Moreover, licensing can transfer, limit, or expand the rights otherwise conferred by intellectual property law. Thus, the second section of the chapter discusses contract law and its limits.

The third section turns to legal rules that affect the way federal agencies acquire and disseminate data. This topic is too complex for



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Licensing Geographic Data and Services 5 Legal Analysis 5.1 INTRODUCTION Although many of the issues discussed in this report are questions of policy, that is, how the government should acquire geographic data, there are a number of legal rights, on the one hand, and constraints on the other, that affect the manner in which government can acquire data. This chapter examines the laws that affect government licensing of geographic data and works. The first section discusses intellectual property law as it applies to geographic data and works, and is concerned primarily with the rights of data providers and limits on those rights embodied in intellectual property doctrines. Mainly, those limits are concerned with balancing incentives for the production of intellectual works against the interest of the public in the free flow of information. A discussion limited to intellectual property law would be income-plete, however, since data providers are increasingly turning to licensing to preserve and enhance the commercial value of their geographic data, which are increasingly at risk of wholesale copying as datasets and products are made available online. Moreover, licensing can transfer, limit, or expand the rights otherwise conferred by intellectual property law. Thus, the second section of the chapter discusses contract law and its limits. The third section turns to legal rules that affect the way federal agencies acquire and disseminate data. This topic is too complex for

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Licensing Geographic Data and Services complete coverage, but we discuss the major laws and regulations that constrain agency practices relating to geographic data. Here again, the public’s interest in access to information is in tension with the commercial sector’s need to maintain its products as proprietary, and often with the government’s own tendencies to limit access to information for cost and other reasons. The final section turns to the situation of state and local governments as data providers and consumers. That section points out the differences not only between private and governmental data providers, but also some of the differences between the rights and obligations of state and local governments on the one hand and federal agencies on the other. 5.2 PRINCIPLES OF INTELLECTUAL PROPERTY LAW APPLICABLE TO GEOGRAPHIC DATA AND WORKS 5.2.1 Copyright 5.2.1.1 Relevance of Copyright Although the subject of this report is licensing, this chapter devotes substantial discussion to copyright. Historically, copyright has been the most important form of protection available for works incorporating, or based on, geographic data, although the protection it affords is limited, as explained below. Consistent with this view, the purveyors of geographic data and works frequently assert copyright protection and ownership,1 and rely on copyright to protect their interests. Licensing traditionally has been used as a means to effect the benefits of copyright protection. More recently, the limited ability of copyright to protect geographic works and data, especially in digital form, has provided a large part of the impetus to distribute data under license rather than selling them. 1   The ownership of copyrighted works or data is a complicated subject, a detailed discussion of which is beyond the scope of this chapter. In the absence of an express (usually written) contract, ownership rights in data not previously published are governed by rules generally applicable to trade secrets, whereas ownership rights in copyrighted subject matter are governed by the “work-for-hire” doctrine (1 R. M. Milgrim, Milgrim on Trade Secrets § 4.02[1][a] [2003]). As between the data provider and a government agency, ownership rights in data and in any copyrights should be dealt with expressly in the contract transferring rights in the data. The purchaser or licensee of data also may wish to obtain the seller’s or licensor’s warranty that it (rather than its employees or subcontractors) is the owner of all rights in the data that are the subject of the contract.

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Licensing Geographic Data and Services The use of licensing does not avoid the need to consider copyright, however. Rather, in drafting licenses or sales contracts for information, it is important to understand that copyright law supplies the default rules for the allocation of rights in the absence of express contractual provisions. Thus, the parties to an agreement transferring rights to geographic data or works often wish to make reference to copyright principles or to contract around the otherwise applicable rules. Further, copyright principles and policies, such as preserving the public domain, may limit the restrictive terms that can be imposed in a license of geographic data.2 Conclusion: Because transactions in geographic data and works will touch upon both copyright and contract principles, an understanding of how copyright applies to geographic data and works is important in licensing. 5.2.1.2 Copyrightability of Geographic Data and Geographic Works The extent of protection available under copyright is governed by several basic principles. First, as the U.S. Supreme Court made clear in Feist Publications, Inc. v. Rural Telephone Service Co.,3 copyright is not available to facts.4 This principle seems to apply to geographic data, that is, information that represents some state or condition of the physical world.5 The judicial decisions are not entirely consistent on this point, however.6 The corollary of Feist is that compilations of facts are subject to copyright, provided that the selection and arrangement exhibit at least a 2   See discussion of preemption in Section 5.3.1.2. 3   499 U.S. 340 (1991). 4   Id. at 345–346. 5   See Sparaco v. Lawler, Matusky, Skelly Engineers, 303 F.3d 460 (2d Cir. 2002) (“To the extent that the site plan sets forth the existing physical characteristics of the site, including its shape and dimensions, the grade contours, and the location of existing elements, it sets forth facts; copyright does not bar the copying of such facts”); Kern River Gas Transmission Co. v. Coastal Corp., 899 F.2d 1458 (5th Cir.) (applying merger doctrine to find map embodying contour lines and lines showing proposed location of gas line uncopyrightable), cert. denied, 498 U.S. 952 (1990). 6   See Mason v. Montgomery Data, Inc., 967 F.2d 135 (5th Cir. 1992) (finding copyrightability in mapmaker’s selection of sources of data to incorporate into map showing land ownership).

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Licensing Geographic Data and Services modicum of creativity.7 As the Court stated, “the requisite level of creativity is extremely low; even a slight amount will suffice.” Thus, many works embodying geographic data will have copyright protection because their selection and arrangement will meet this minimal standard of originality.8 The lines between copyrightable and uncopyrightable datasets are not easily drawn, however. Consider, for example, a database containing latitude and longitude coordinates determined by the Global Positioning System (GPS) that locate such features as building corners and fire hydrants. The coordinates and what they locate are facts, and thus are not protected by copyright. Further, individual attributes describing a building or hydrant would be facts. However, a particular selection of attributes describing a building or hydrant, especially when the selection and arrangement are one of a number of possibilities, might be sufficiently original to merit copyright protection.9 Suffice it to say that categorical statements about the copyrightability of databases of geographic data are unwise; each case must be examined closely on its own merits. Other works that incorporate factual material, such as maps and photographic images, may contain creative expression along with factual information.10 Maps and photographic images, for example, often have 7   Thus, whereas Feist held that the alphabetical white-page listings of a telephone directory were not subject to copyright protection, other cases have distinguished compilations embodying more expressive choices, such as the yellow pages of the phone book, as copyrightable. 8   See Montgomery County Ass’n of Realtors, Inc., v. Realty Photo Master Corp., 878 F. Supp. 804 (D. Md. 1995) (multiple listing service that contained elements of puffery and original display was copyrightable). In Feist, the Supreme Court found that an alphabetical listing of names and telephone numbers lacked the requisite creativity, however. 9   See Mason v. Montgomery Data, Inc., in footnote 6. In some instances, a selection or arrangement chosen to ensure that it is sufficiently original to gain copyright protection may not be useful because it includes or excludes data based on criteria that are not sufficiently functional for its intended purposes. For example, contour lines established above an arbitrary datum with an interval that increases logarithmically would not be useful for most practical purposes. 10   An analogy might be drawn to historical books, which contain factual material along with the author’s creative expression and arrangement. Although the author’s creative expression is protected by copyright, the historical facts are not, and they may be used without the author’s permission. See 1 M. V. Nimmer and D. Nimmer, Nimmer on Copyright § 2.11[A] (2003) (hereinafter “Nimmer on Copyright”). The contrary view that research was copyrightable based on the labor invested, sometimes called “sweat of the brow,” was overturned by Feist.

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Licensing Geographic Data and Services been found to be copyrightable. Others may extract, copy, and use the factual information contained in the work as long as the creative expression is not copied. Thus, such works, like factual databases, often are said to have “thin” copyright protection.11 For example, aerial photography and satellite imagery are analogous in many ways to conventional photography. Conventional photographs have been found copyrightable because of the expressive or artistic choices of the photographer, such as the selection of subject matter, framing of the image, lighting, and exposure.12 Even though photography of natural objects and features of the landscape may involve similar creative choices,13 such choices are not as evident in the case of aerial photography and even less so in the case of satellite images, where framing and other aspects of the image may be determined largely by the technology and practical considerations rather than by creativity. Digital maps based on geographic data are similarly likely to involve minimal expression, particularly when they are generated by computer software, using standard conventions for display of various features. As with databases of geographic data, the copyrightability of aerial photographs, satellite images, and digital maps defies easy categorization and should be assessed on a case-by-case basis. Conclusion: Although geographic data equivalent to facts will not be protected by copyright, compilations of geographic data such as databases and datasets, as well as maps and other geographic works that incorporate creative expression, may have copyright protection. Even if copyright applies, however, copyright will not protect individual facts. Conclusion: It is often impossible to resolve definitively whether particular subject matter is protected by copyright. When contracting for the outright purchase or licensing of geographic data or works, it is important for the agreement to address (1) whether the licensor or the seller claims copyright protection, and (2) the extent to which the parties intend to transfer or license such rights. 11   D. Karjala, 1995, Copyright in electronic maps, Jurimetrics Journal, 35:395. 12   An early case involved a photograph of Oscar Wilde, which was held to have copyright protection. See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884). For a more complete analysis, see 1 Nimmer on Copyright § 2.08[E]. 13   Few would doubt the copyrightability of the works of nature photographers such as Ansel Adams.

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Licensing Geographic Data and Services 5.2.1.3 Copyright in Software14 Software for searching and manipulating geographic data may be bundled with or provided separately from a database. A familiar example is mapping software such as that used by Mapquest. Copyright protection also extends to software used to search or otherwise manipulate data and other information, and protection extends to both source and object code.15 Copyright in computer programs is limited, however, because courts have held that copyright does not protect the utilitarian or functional aspects of a program.16 Thus, functional aspects of a program that can only be implemented in a limited number of ways, including aspects that are necessary to the functioning of the program or that provide efficiencies in its operation, are not protected by copyright. Additionally, courts generally do not extend copyright protection to code sequences that represent standard practices in the industry or that are necessary for external reasons, such as interoperability with software.17 Conclusion: Copyright in software is likely to be “thin,” precluding exact or literal copying, but less clearly covering uses that alter or transform code, or that incorporate sequences of code shorter than the entire program. In general, licenses of geographic data or works should specify any conditions on the licensee’s ability to copy, modify, redistribute, or make other uses of software provided in connection with the license. 14   Software additionally may be subject to patent protection as discussed below. Software also may have trade secret protection when distributed to a limited number of users under contractual restrictions, or when source code cannot be obtained by decompiling the object code. 15   1 Nimmer on Copyright § 2.04[C]. 16   Computer Associates Int’l, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992). Another important issue, which will not be further pursued herein, is what constitutes making a “copy” for the purposes of infringement. Some courts have held that loading a document or program into the random access memory of a computer constitutes making a copy. 17   For a contrasting view, see Dun & Bradstreet Software Servs., Inc. v. Grace Consulting, Inc., 307 F.3d 197 (3d Cir. 2002). In Dun & Bradstreet, the Third Circuit held that the defendant could be liable for copying only 27 out of 525,000 lines of code, and rejected the defendant’s argument that its copying consisted of sequences that are “standard, stock, or common to a particular topic or that necessarily follow from a common theme or setting.”

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Licensing Geographic Data and Services 5.2.2 Limits on Copyright Protection Traditional limits on copyright protection include the right to use uncopyrightable aspects of a copyrighted work (such as facts in a factual work, or the utilitarian features of a work, as noted above) and fair use. Fair use provides a limited right to use copyrighted material for certain purposes, including research, criticism, news reporting, and education.18 The Copyright Act19 and judicial precedent set forth four factors to be considered in determining whether a use is fair: (1) the purpose and character of the use (e.g., commercial or noncommercial), (2) the nature of the work (i.e., factual or otherwise), (3) the amount and substantiality of the use in relation to the work as a whole, and the (4) potential effect on the market for the copyrighted work. No factor is dispositive, although a few generalizations can be made. For example, greater latitude is allowed for use of factual works than for fictional ones, and transformative uses (as distinguished from simple copying) are also favored. The effect of the use on the market for the copyrighted work is often an important if not deciding factor. Because some geographic data and works are factual, and because some uses might be characterized as insubstantial or might be related to research or teaching activities or other favored uses, at least some uses of copyrighted geographic data would likely qualify as fair use. For example, use of a copyrighted database for research or teaching purposes, or to verify scientific claims, might qualify as fair use. Some courts have held that reverse engineering of computer software to determine how it works is fair use,20 although this rule is not universally followed and may be subject to waiver by contract.21 Like the issue of copyrightability, fair use analysis is fraught with uncertainty. The misuse doctrine is another limit on copyright that may be significant for works employing geographic data. If the copyright owner is deemed to have “misused” the copyright, the copyright will be unenforceable until the effects of any misuse have been purged.22 Misuse usually is based on the copyright owner’s attempt to extend the lawful monopoly conferred by copyright to unprotected subject matter or 18   For a general discussion of fair use, see 4 Nimmer on Copyright § 13.05 (2003). 19   17 U.S.C § 107. 20   See, for example, Atari Games Corp. v. Nintendo of America Inc., 975 F.2d 832 (Fed. Cir. 1992). 21   Bowers v. Baystate Technologies, Inc., 320 F.3d 1317 (Fed. Cir. 2003). 22   Lasercomb America, Inc. v. Reynolds, 911 F.2d 970 (4th Cir. 1990).

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Licensing Geographic Data and Services activities, such as anticompetitive clauses in licensing agreements.23 At least one court, however, has rejected the claim that a contract term prohibiting reverse engineering constitutes misuse.24 Anticompetitive conduct may also give rise to antitrust liability (see Section 5.2.3.4). Conclusion: Fair use and the misuse doctrine represent significant limits on the copyright owner’s rights. The scope of their application is sufficiently uncertain, however, that, where possible, parties should contract for anticipated uses rather than rely on fair use doctrine or other uncertain legal doctrines to sanction the licensee’s activities. 5.2.3 Patent Protection and Limits Software and the interactive processes used to access geographic data in digital form (e.g., over the Internet) are also potentially patentable, at least under current law.25 Patent protection typically protects the series of steps or algorithm performed on the computer, rather than specific code. There is no fair use exemption to patent infringement. An accused infringer may defend by showing that the patent is invalid or was misused, claims that would require case-by-case analysis. Case law also has recognized a narrow exemption for research; the exemption has come under recent scrutiny, however, and its scope is unclear.26 Conclusion: Some software used with geographic data and works may be patented, although the exact scope of available protection is an area of the law that is still developing. When patented or copyrighted software is provided in connection with geographic data or works, the terms of its use should be addressed in a license. 23   4 Nimmer on Copyright § 13.09. 24   Syncsort Inc. v. Sequential Software, Inc., 50 F. Supp. 2d 318 (D.N.J. 1999). 25   State St. Bank & Trust Co. v. Signature Fin. Group, 149 F.3d 1368 (Fed. Cir. 1998). In one case, a federal district court ruled that the auction Web site eBay must pay $35 million for infringement of the plaintiff’s e-commerce patents. See MercExchange LLC v. eBay, No. 2:01cv736 (E.D. Va. May 27, 2003). For a case involving software for the compression and storage of large digital images, see LizardTech, Inc. v. Earth Res. Mapping, Inc., 35 Fed. Appx. 918 (2002). 26   Integra Lifesciences I, Ltd. v. Merck KGaA, 331 F.3d 860 (Fed. Cir. 2003) (noting that the Patent Act does not include an “experimental use” exemption for infringement); Madey v. Duke Univ., 307 F.3d 1351 (Fed. Cir. 2002), cert. denied, Duke Univ. v. Madey, 2003 U.S. LEXIS 5045.

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Licensing Geographic Data and Services 5.2.4 Technological Controls and the DMCA Owners of digital geographic data, like other database owners, may use technological means to protect digital information.27 Access controls, such as the use of passwords, are common for digital content, and often are linked with the requirement that the user accept the database provider’s terms (see discussion of “click-wrap” and “shrink-wrap” licenses in Section 5.3.1). Encryption also can be used to protect content from unauthorized access. Similarly, watermarking and other technologies protect against copying or deter copying by permitting identification of copied materials. Technological means also can be used to monitor the users’ activities, such as accessing, opening, and reading files.28 The use of technological controls to protect digital content that contains at least some copyrighted material is reinforced by new legal rights created by the Digital Millennium Copyright Act of 1998 (DMCA).29 The DMCA creates civil and criminal penalties for defeating technological measures that control access to a copyrighted work and for providing technological means to defeat access controls and copy protection measures. The DMCA also provides for civil and criminal penalties for violations of prohibitions on changes to copyright management information included in digital works. Although the DMCA contains some exceptions to its liability regime, it is widely viewed as foreclosing uses that would otherwise qualify as fair use under copyright law. Some states also have adopted or are considering “super DMCA” legislation, which is intended to provide legal protection against the theft of telephone and cable services. This broadly drafted legislation, however, could arguably be interpreted to prohibit the use of security technologies, such as those that conceal the origin or destination of data packets transmitted over the Internet, or with encryption and decryption, which are also widely used for security purposes. Although measures are being 27   The array of legal and technological tools used by content owners to protect digital content are referred to as digital rights management (DRM) (B. Frischmann and D. Moylan, 2000, Berkeley Technology Law Journal 15:865). 28   J. E. Cohen, 1996, A right to read anonymously: A closer look at “copyright management” in cyberspace, Connecticut Law Review 28:981, 983–987. 29   Pub. L. No. 105-304, 112 Stat. 2860 (1998). A summary of the provisions of the DMCA can be found at <http://www.copyright.gov/legislation/dmca.pdf>. See also 3 Nimmer on Copyright § 12A.03 (2003).

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Licensing Geographic Data and Services taken to revise the model legislation, it is not clear whether these changes will become law.30 Conclusion: Owners of geographic data and works continue to use technological controls to protect digital content. The DMCA reinforces these means with civil and criminal penalty provisions that override activities that might otherwise qualify as fair use. When licensing geographic data or works in digital form, agencies should include adequate provision for the anticipated downstream uses that otherwise may be precluded or called into question by the DMCA. Conclusion: Some licenses of geographic data may require agencies to limit access to, and further use of, digital geographic data by third parties. When license agreements contemplate limited access by third parties, such as other agencies or members of the public, the agency must ensure that the conditions on access and use contemplated by the agreement are compatible with the technological capabilities of the agency. 5.2.5 Unfair Competition and Misappropriation State unfair competition law may provide some additional protection against copying and use of databases created through significant investment of resources in limited circumstances. In some states, a “misappropriation” claim might be sustainable against someone who appropriates information whose value is time sensitive and uses it in a manner that lessens or destroys the value to the creator. The misappropriation doctrine is based on the “sweat of the brow” or “industrious creation” theory.31 In INS v. AP, the U.S. Supreme Court upheld an injunction against the INS for appropriating and publishing news items from the AP’s bulletin boards, destroying their value to the AP. The Court justified the decision on the ground that the defendant’s appropriation would otherwise destroy the incentive to invest in the gathering and publication of news. 30   See State “super DMCA” anti-piracy bills seen undermining security protection, Journal of Patent, Trademark & Copyright Law 65:588 (Apr. 18, 2003). 31   This theory was rejected by Feist in the context of copyright, a development that raises additional questions about the viability of the misappropriation doctrine except on facts analogous to International News Service [INS] v. Associated Press [AP], 248 U.S. 215 (1918). See 1 Nimmer on Copyright § 3.04[B][3][b].

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Licensing Geographic Data and Services Since the adoption of section 301 of the Copyright Act, claims for misappropriation of uncopyrightable facts usually have been found to be preempted by copyright law, except in cases closely analogous to the “hot news” scenario of INS.32 Nevertheless, some geographic data have value that is time-limited and therefore might be appropriate for the hot-news misappropriation theory. Moreover, recent proposals for database protection embody some of the principles of the common law misappropriation doctrine (see also Section 5.2.6). 5.2.6 Database Protection Legislation Since 1996, Congress has considered several proposals to create a new form of protection for databases. The Feist decision prompted concern that investment in databases would be discouraged because factual databases would not be protected by copyright. The impetus for database protection was also increased by the European Union’s (EU’s) adoption in 1996 of its Database Directive,33 which created a new form of intellectual property in databases. Under the directive, the “extraction and/or re- utilization of the whole or of a substantial part” of a protected database without the owner’s permission is prohibited. Protection under the directive nominally expires after 15 years, but this limitation may be meaningless in cases where data are continually updated, since protection is extended when a database is augmented through substantial new investment.34 Proposals for new U.S. legislation either track the EU Directive or adopt an unfair competition theory, limiting infringement to activities that impact the market for the database. The National Academies,35 the American Association for the Advancement of Science, and other scientific organizations have questioned whether the need for database protection has been demonstrated, noting the robust database market in 32   See, e.g., National Basketball Association v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997). See generally Restatement (Third) of Unfair Competition § 38 Appropriation of Trade Values & Reporter’s Note, American Law Institute, 1995. 33   Directive 96/9/EC of the European Parliament and the Council of 11 March on the legal protection of databases. The directive itself is available at <http://cyber.law.harvard.edu/property00/alternatives/directive.html>. 34   Of course, the original database would no longer be protected, but it might not be available separately from the augmented version. 35   National Academy of Sciences, National Academy of Engineering, Institute of Medicine, Letter of October 9, 1996, to The Honorable Michael Kantor Secretary of Commerce Department of Commerce.

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Licensing Geographic Data and Services 5.4.2.1 FOIA The FOIA85 requires federal agencies to disclose upon request, records that they have created or maintained, unless the records are covered by one of the exemptions of the Act.86 Records are not limited to paper copies, and include information stored in any form, including electronic. A threshold question is whether licensed data constitute “records” subject to FOIA.87 At least one court has held that a database licensed to a federal agency under conditions that “greatly restrict[ed]” the agency’s control did not constitute records, and therefore did not fall within the ambit of FOIA.88 Arguably, this ruling would apply to licensed geographic databases, but the paucity of legal rulings on the issue leaves open the possibility that data subject to a restrictive license would fall within the scope of FOIA records. We assume that result for the purposes of the ensuing discussion. Even if licensed data constitute FOIA “records,” however, they may be protected from disclosure by one of the statute’s multiple exemptions. Several exemptions are potentially important in the context of this report. There is a specific exemption for geological and geophysical information and data concerning wells.89 A broader exemption applies to trade secrets, and commercial or financial information of a privileged or confidential nature.90 Geographic data provided by private vendors could qualify for this exemption, if the information has been maintained as confidential, is 85   5 U.S.C. § 552. See also 1 R. J. Pierce, Jr., Administrative Law Treatise §§ 5.2–5.16 (2002) (hereinafter 1 Administrative Law Treatise). 86   5 U.S.C. § 552(b). 87   See discussion of the scope of “government information” under OMB Circular A-130, in Section 5.4.1.1. 88   Tax Analysts v. U.S. Dept. of Justice, 913 F. Supp. 599 (D.D.C. 1996). In Gilmore v. Dept. of Energy, 4 F. Supp. 2d 912 (N.D. Cal. 1998), the court held that software licensed to the government did not constitute records subject to FOIA because the agency had only a license to use the software and, alternatively, because the software and related technical information did not “illuminate the structure, operation, or decision-making structure” of the agency. A third ground for the result was that the software qualified as “trade secrets or commercial or financial information” that was confidential or privileged. 89   5 U.S.C. § 552(b)(9). This exemption seems to be concerned with oil and gas wells and the potential harm to the competitive positions of participants in the oil and gas industry. 1 Administrative Law Treatise § 5.16; 2-1. J. A. Stein, G. A. Mitchell, and B. J. Menzines Administrative Law § 10.01 (2003). 90   5 U.S.C. § 552(b)(4). See 1 Administrative Law Treatise § 5.10; 2-10; 2-1 Administrative Law § 10.05.

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Licensing Geographic Data and Services used in their business, and is licensed to the government with distribution restrictions. Geographic data licensed from state or local governments also might qualify for this exemption if the data or database have been maintained in confidence.91 This exemption is evaluated under a balancing test, however, in which the court weighs the public interest in understanding the operations of government against the interest Congress intended the exemption to protect—among other things, the harm to the competitive position of the information provider and potential harm to the government’s ability to acquire similar information in the future.92 In most instances, it is reasonable to expect that licensed data would not be subject to disclosure under FOIA because it will fall outside the scope of FOIA or will enjoy the benefit of one of its exemptions. Where applicable, licensors of geographic data may wish to state in the license that the licensed information is trade secret or confidential. The courts ultimately have the authority to determine whether contested information meets the requirements of the definition, however, and the party arguing for nondisclosure (agency or private party) has the burden of proof that the requirements of an exemption are met. Conclusion: Licensed data ordinarily will not be subject to disclosure under FOIA, either because they do not constitute agency records or because they qualify for FOIA’s exemption for trade secrets or other confidential commercial information. Parties to a data license should state their understanding that the information falls within one of the exemptions, but any such designation may be subject to subsequent judicial review. 5.4.2.2 Accountability and Judicial Review of Agency Actions Another constraint on agencies’ ability to limit public access to commercial geographic data or works is the need for public access to the rationale of certain agency actions and policy decisions, such as rulemaking. Statutes that may come into play, in addition to FOIA, include the 91   This exemption also requires that the information have been obtained from a “person” to qualify for the exemption; a Department of Justice memorandum indicates that state governments (and presumably their subdivisions) are “persons” within the meaning of the statute, although it has been interpreted to exclude federal agencies (Administrative Law, see footnote 89; Department of Justice Guide to the FOIA, 2002, Appendix 10A). 92   Gilmore, 4 F. Supp. 2d at 922.

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Licensing Geographic Data and Services Government in the Sunshine Act,93 the Federal Advisory Committee Act,94 and other provisions of the Administrative Procedure Act. Agencies usually are required to explain rules and other actions they propose by publication in the Federal Register, giving the public access to the agency record and an opportunity to comment.95 These decisions typically are subject to judicial review,96 which often requires examination of the factual and legal bases of the decision.97 These kinds of decisions could involve geographic data. Assume, for example, that the designation of a critical habitat under the Endangered Species Act is based in part on mapping of a watershed. If the decision is challenged in the courts on the basis that the mapping was inaccurate, the agency must be able to point to supporting information in the administrative record, and that information ordinarily must be available for public scrutiny during the regulatory process and any challenges brought.98 If the agency were unable to produce the information supporting its decision because of contractual restrictions, its decision could be overturned. The cases are not entirely clear as to how strictly this requirement would be applied, however, and the answer may depend on how central the information is to the decision under review.99 Conclusion: An agency must be able to disclose geographic data that it relied on in policy decisions and other actions, including rulemaking. If the agency is unable to make such data available because of contractual restrictions, the agency’s action may be overturned. 93   5 U.S.C. § 552(b). 94   5 U.S.C. Appendix I. 95   1 C. H. Koch, Jr., Administrative Law & Practice §§ 4.10–4.18, 4.30–4.34 (2d ed. 1997). 96   2 Administrative Law & Practice § 8.23 (2d ed. 1997). 97   2 Administrative Law & Practice § 8.27 (2d ed. 1997). 98   1 Administrative Law & Practice §§ 4.32, 4.44 (2d ed. 1997). 99   In National Nutritional Foods Ass'n v. Mathews, 418 F. Supp. 394 (S.D.N.Y. 1976), rev’d on other grounds, 557 F.2d 325 (2d Cir. 1977), the court upheld an action by the Food and Drug Administration despite the fact that the FDA relied in part on information that it withheld from public review under FOIA. Thus, FOIA may trump the requirement of public access to the record, although if the information were important to the decision, the decision might be reversed or remanded. See also Mortgage Investors Corp. v. Gober, 220 F.2d 1375 (Fed. Cir. 2000) (rule upheld despite agency’s withholding of some information it relied on).

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Licensing Geographic Data and Services 5.4.2.3 Data Access and the Data Quality Act (DQA) Two recent enactments are also designed to strengthen public access to information that government agencies use in formulating rules and policy. In 1999, Congress adopted the Shelby Amendment to an appropriations bill. The amendment required OMB to amend Circular No. A-110, to “require Federal awarding agencies to ensure that all data produced under an award will be made available to the public through the procedures established under the Freedom of Information Act.” The revisions to Circular A-110 limit access under FOIA to “research data relating to published research findings produced under an award that were used by the Federal Government in developing an agency action that has the force and effect of law.”100 The significance of this data access amendment is that it subjects data in the hands of federal grantees to FOIA, which previously extended only to information in the possession of the federal government. This includes, for example, the data produced by academic researchers pursuant to federal research grants when the data are cited in support of a federal regulation.101 Like FOIA generally, A-110 protects trade secret information, but a recent request for access to proprietary software suggests that pressure for access to otherwise nonpublic information is likely to increase.102 The DQA103 followed closely on the heels of the Shelby Amendment in the fiscal 2001 appropriations bill. It directs OMB to issue guidelines that “provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies.” The OMB, in turn, required agencies to issue their own guidelines. Those guidelines must include “administrative mechanisms” for “affected persons” to challenge the quality of information disseminated 100   OMB Circular No. A-110, available at <http://www.whitehouse.gov/omb/circulars/a110/a110.html>. 101   More specific conditions for access are set forth in Circular A-110. 102   On January 22, 2002, the Center for Regulatory Effectiveness, a group instrumental in the passage of The Shelby Amendment and the DQA, sent a letter to the U.S. Environmental Protection Agency (EPA), requesting that EPA obtain the rights to release proprietary software that the agency is using to predict economic effects of “Multi-Pollutant” air pollution. The letter is available at <http://www.thecre.com/quality/20020121_cioletter.html>. 103   Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. No. 106-554).

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Licensing Geographic Data and Services by the government and for “correcting” information that does not meet the guidelines. In contrast to Circular A-110, which concerns access to research data in the hands of grantees, the DQA is directed to information disseminated by the government. This distinction may be more apparent than real, however, since the DQA can be used to challenge scientific conclusions disseminated by the government, but based on academic or private research. Recent actions include challenges to the National Assessment on Climate Change104 and to research on the herbicide atrazine.105 Although the standards for “correction” of information under the DQA have not been developed,106 they will almost surely require some examination of underlying data. It would not be surprising for geographic data to be implicated in DQA challenges and subject to public disclosure in the process. Alternatively, without the ability to disclose data, information and decisions that cannot be justified may have to be withdrawn. Conclusion: Newly adopted data quality and data access requirements may necessitate the disclosure of geographic data, particularly where the data form the basis of a government policy or regulation. The scope of these requirements is uncertain, however. 5.5 STATE AND LOCAL LAW AND POLICY State and local governments generate and collect significant quantities of geographic data utilized by federal programs, and they are also consumers of geographic data supplied by the federal government and other entities. Federal law permits state and local governments to assert copyright in works containing geographic data (if they otherwise meet the requirements for copyright protection). When consistent with local law, state and local governments may also maintain geographic data as secret, or to restrict their use and redistribution. Thus, state and local law or government policies may place important conditions on how geographic data are obtained from and delivered to states, counties, and municipalities. 104   See the Center for Regulatory Effectiveness discussion at <http://www.thecre.com/access/index.html>. 105   The Center for Regulatory Effectiveness also brought this challenge. See <http://www.thecre.com/quality/index.html>. 106   Many issues on the applicability and scope of the DQA are in dispute and have not been resolved by the courts.

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Licensing Geographic Data and Services There are two major issues on which state and local law or policy is likely to affect transactions in geographic data and works.107 First, these entities sometimes rely on cost recovery to fund their collection and related activities (Chapter 4, Section 4.3). In these instances, they are likely to anticipate multiple licenses of a dataset and are therefore unwilling to sell data outright or license it with permission for the federal agency to distribute it publicly. Thus, where cost recovery policies are in place, it may not be possible for federal agencies to obtain unlimited rights to geographic data. Moreover, federal policies requiring the disclosure of geographic data may inhibit state and local participation in partnering with the federal government to generate databases such as The National Map. For example, Executive Order 12906, 108 encourages partnerships between federal agencies and state, local, and tribal governments to share costs in acquiring geographic data. Because the order also requires public access to the data,109 state and local governments may find such partnerships to be contrary to their interests or their laws. State open records laws sometimes make the cost recovery policies discussed above somewhat problematic, however, because these laws require disclosure of public records upon request of citizens, much like the federal FOIA.110 Pursuant to these statutes, some state courts have required the disclosure of geographic datasets developed in a municipality or county, effectively putting the information in the public domain.111 Recognizing 107   See also discussion in Section 5.3 on contract law principles, which are also a matter of state law. 108   Coordinating geographic data acquisition and access: The National Spatial Data Infrastructure, 59 Fed. Reg. 17,671 (Apr. 13, 1994), amended by Executive Order 13286 of February 28, 2003, Amendment of executive orders, and other actions, in connection with the transfer of certain functions to the Secretary of Homeland Security, 68 Fed. Reg. 10,619 (Mar. 5, 2003). Executive Order 12906 has been incorporated into OMB Circular No. A-16. See footnote 69. 109   Access is required “to the extent permitted by law, current policies, and relevant OMB circulars, including OMB Circular No. A-130…and any implementing bulletins.” See 59 Fed. Reg. 17,671, cited in footnote 108. 110   See Conn. Stat. Ann. § 1-210. For a compilation, see Urban and Regional Information Systems Association (URISA), 1993, Marketing Government Geographic Information: Issues and Guidelines, Washington, D.C., URISA, pp. 12–22. 111   In some instances, state opens records laws have been interpreted to permit access and copying, but not redistribution or other uses, such as commercial uses, if the locality prohibits those activities or requires a license for them. See, for example, County of Suffolk, NY v. First American Real Estate Solutions, 261 F.3d 179 (2d Cir. 2001), in which the county sued First American for copyright

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Licensing Geographic Data and Services the difficulties that these disclosure requirements pose for the prospect of cost recovery, several state legislatures are considering legislation to permit their political subdivisions to restrict access to or copying of geographic data.112 Conclusion: State and local governments are both suppliers and consumers of geographic data. Not uncommonly, they rely on revenue from licensing their geographic data to recover some of their costs, which may limit federal agencies’ ability to acquire unlimited rights in the data. The public disclosure requirements of federal law may inhibit state and local participation in partnerships to acquire geographic data. 5.6 SUMMARY Licensing of geographic data and works has come of age because of the limitations of copyright and other intellectual property doctrines in protecting them in the digital environment. Copyright protection is often unavailable for geographic data and is limited for databases and datasets of geographic data. Even remote-sensing imagery and maps are likely to enjoy only limited protection. The extent to which copyright applies to particular geographic data and works is often uncertain. With limited copyright protection, providers of geographic data or works in digital form have turned to other means to protect these works. These include using technological means to control access and copying,     infringement of its official tax maps. This case involved the application of New York's Freedom of Information Law (FOIL), which permitted inspection and copying. The court concluded that the FOIL did not abrogate copyright protection, which in this case was invoked to prohibit commercial redistribution of the copyrighted maps. See also Lawsuit against property appraiser could set precedent in GIS cases, Naples Daily News (Mar. 28, 2004) (summary judgment for Collier County on its right to restrict commercial use of geographic information system data through licensing). 112   See, for example, Connecticut H.B. 5014 (2003). The proposed bill exempted from disclosure “municipal geographic information system data concerning a residence or building,” but a subsequent version of the bill prohibited the sale of certain geographic information paid for with public funds. Hawaii H.B. 443, deferred to the 2004 session, would delete “any map, plan, diagram, photograph, photostat, or geographic information system digital data file” from the definition of government records that the government is required to provide copies pursuant to its open records law. See <http://www.capitol.hawaii.gov/sessioncurrent/bills/hb443_.htm>.

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Licensing Geographic Data and Services measures that are reinforced by the DMCA for works having at least some copyright protection. Moreover, courts recently have upheld contracts or licenses that limit the uses that a licensee can make of data, or that prohibit further distribution, rejecting arguments that shrink-wrap and click-wrap licenses are not agreed to by the consumer or that the contractual protection of facts is preempted by copyright law. Data providers’ rights are likely to be further strengthened if Congress adopts database protection. Government agencies face difficulties in adapting their data acquisition policies to this new, changing environment. Uncertainty can be reduced by thoughtful drafting; and contracts for the purchase or licensing of data should address the rights conveyed and withheld, including whether copyright is claimed, rights are assigned or licensed, and rights are withheld—such as uses that can be made of the data or works, and the persons or entities authorized to use it. Additionally, government agencies acquiring data subject to limited rights should consider their technical capability to manage the restrictions, as well as other costs associated with managing geographic data in which they have limited rights. Federal agency data acquisitions also are constrained by the requirements of a variety of federal laws and regulations. Some federal laws and policies embody a strong preference for making data available to the public and a number of the agencies told the committee that their missions require them to acquire unrestricted geographic data that are free to make available to the public on the Internet. Additionally, government accountability may require that geographic data be available to the public, particularly under changes to the law regarding data access and data quality. Even so, OMB Circulars such as A-130, the FARs, and the FOIA recognize the possibility that some government information will be subject to proprietary restrictions and cannot be disseminated or made available to the public.

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Licensing Geographic Data and Services VIGNETTE E. A PERSONAL COMMUNICATOR DREAM Susan carries a pocket-sized personal communicator that receives, sends, and records voice communications, text messages, still images, and videos. Using voice or keypad commands, she can connect to the Web, comparison shop, or make mail-order purchases at any time from any location. The communicator gives Susan information about any building or commercial establishment at which the device is pointed, provides voice directions or route maps for any prescribed destination, tracks her as she travels and reroutes her around traffic congestion, allows her to communicate simultaneously with multiple friends by oral conferencing or text messaging, and provides her with a range of “pull” services that answer such questions as whether stores in her vicinity sell aspirin. At any time, Susan can set or change her privacy preferences dictating who can contact her through the device and by what methods, whether and how precisely in time and location they may track her current and past positions, and to what extent the telecommunications provider may archive her past locations, purchases, and activities accomplished through the device. Susan’s personal communicator contains all of her work and personal documents from the past 10 years, several movies and games, thousands of songs, and high-resolution images of Earth’s land masses with sufficient detail to do realistic aerial or ground-level flythroughs down any street worldwide or the hallways and rooms of any public building. Although public officials in Susan’s town use these flythrough capabilities on their personal communicators to manage facilities and to provide evacuation paths through buildings or along street networks during emergencies, Susan and her friends use such flythroughs to play virtual games and explore real-world settings where they have never physically been. When updates containing more detailed or more comprehensive geographic data become available, Susan simply downloads the upgrade for a fee from the vendor or for free from the information commons. Millions of individuals like Susan also carry personal communicators, and each person regularly makes decisions about (1) the ways others can communicate with them, (2) what information about them will be available to others, and (3) what digital services and products they are interested in. Underpinning this environment is a network of legally enforceable contracts and licenses controlled by each person’s preference settings and enforced automatically through computer code. In the end, the dream comes down to this: Can the core ethical principle of individual autonomy be used to direct the creation of an overall information infrastructure that automatically enforces contracts

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Licensing Geographic Data and Services and licenses to efficiently support an active information commons and a thriving marketplace?