National Academies Press: OpenBook

Licensing Geographic Data and Services (2004)

Chapter: 5 Legal Analysis

« Previous: 4 Experiences of Government in Licensing Geographic Data From and To the Private Sector
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

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

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

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.

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

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).

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

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.

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

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.

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
5.2.1.3 Copyright in Software
14

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.”

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
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).

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

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.

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
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).

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

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].

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

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.

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

the United States even in the absence of this additional protection. These organizations also have identified many potential problems with the database proposals, including the absence in the EU model of any provision for fair use.36 Additionally, research indicates that the EU directive has not provided a significant stimulus to database creation in the EU.37

At the time of this writing, Congress had not enacted database protection legislation, although new legislation was introduced in October 2003 and March 2004.38 The National Academy of Sciences and the National Academy of Engineering presented testimony before Congress on H.R. 3261 and have written to Congress expressing opposition to the legislation.39 If database legislation is ultimately adopted, licenses and purchase agreements for geographic data and works then would need to specifically address statutory database rights, in a manner analogous to provisions covering copyright.

Conclusion: Database legislation could significantly strengthen the rights of database developers and limit access to and use of geographic data. If database legislation passes, licenses of geographic data and works would need to address statutory database rights in a manner similar to contractual allocation of rights under copyright law.

5.3 CONTRACT LAW AND LICENSING

5.3.1 General Principles

Contract law40 and licensing have begun to play an important, even paramount, role in protecting databases, including geographic databases.

36  

National Research Council (NRC), 1999, A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases, Washington, D.C., National Academies Press.

37  

S. Maurer, P. B. Hugenholtz, and H. Onsrud, 2001, Europe’s database experiment, Science 294:789.

38  

H.R. 3261, Database and Collections of Information Misappropriation Act (introduced Oct. 8, 2003); H.R. 3872, Consumer Access to Information Act of 2004 (introduced Mar. 3, 2004).

39  

See <http://energycommerce.house.gov/108/Hearings/09232003hearing1086/Wulf1714.htm>.

40  

Contract law is largely a creature of state, rather than federal, law and the principles discussed herein are those developed under the law of the various states. In contrast, contracts to which the federal government is a party are governed by federal law (W. N. Keyes, 1996, Government Contracts Under the Federal

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

This development began several decades ago as digital media began to replace paper. It has been accelerated by the availability of digital media and the rise of the Internet as the preferred platform for managing large databases.

Traditionally, many forms of information have been published in print form. In that environment, copyright and the practicalities of printing prevented wholesale copying and republication. Readers, however, have been free to extract and use the factual information and ideas contained in a published work. Contractual restrictions on the use of factual information41 in the print environment have been feasible only where the information provider maintained the information as trade secret or confidential and negotiated an agreement with each recipient of the information, typically requiring customers to maintain the confidentiality of the information and limit its use to specified purposes. Such agreements are seldom feasible for more than a few licenses. This trade secret information would not be published in the usual sense of the term; if it did become publicly known, trade secret protection would cease.

The shift to electronic media has made it possible for information providers to extend the licensing model to large numbers of customers. For example, data are often provided in electronic media such as compact disks (CD-ROMs), often packaged with software that allows searches and other manipulations of the information. Although this kind of packaging and sale of information is in many ways analogous to the sale of a print text, database providers have sometimes followed the model used for software licensing, in which the provider sells the disk, but licenses the information with restrictions on how it may be used. Typically, such licenses prohibit copying and dissemination to other potential users, and in the case of software, may contain terms restricting reverse engineering or decompiling of code.

Where a database is marketed to large numbers of potential customers (i.e., in mass markets), the license is packaged with the product or requires assent to the seller’s conditions through a click of the mouse before the customer can access or install the information. The validity of

   

Acquisition Regulation § 33.22, Eagan, West Information Publishing Group. Thus, the Federal Acquisition Regulations (FARs), as interpreted in the courts, will govern contracts entered pursuant to the FARs, though these often may be interpreted with reference to the “general law of contracts” prevailing in most states. However, parties sometimes incorporate choice of law provisions that specify that the law of a particular state and federal law govern.

41  

Copyrighted information, of course, cannot be used without a license, irrespective of whether it is confidential.

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

these shrink-wrap or click-wrap licenses has been in question because the customer does not see the license—and therefore cannot consent to its terms—until after the transaction is completed. Such licenses also have been challenged as unlawful contracts of adhesion on the ground that there is no actual negotiation of terms.42 Recently, however, courts have upheld these licenses, based on assertions that the customer could return the goods if the license terms were unacceptable, or that the customer is aware of the terms from previous transactions.43

Where databases are delivered over the Internet, each user can be required to pay the price for access and to assent to conditions imposed by the database provider, before access is permitted. These click-wrap licenses thus avoid some of the contract formation issues that arise with the sale of shrink-wrap CD-ROMs. Potential customers, however, still have little ability to negotiate license terms and often are faced with take-it-or-leave-it terms.44

Finally, contracts may be held invalid or unenforceable under conditions where the agreement is found to contravene some important public policy. Courts sometimes use the unconscionability doctrine to strike down terms imposed by a party with greatly superior bargaining power, especially when the terms are oppressive, unfair, or render other terms of the contract or other law ineffective.45 However, even onerous terms in a consumer

42  

M. A. Lemley, 1995, Intellectual property and shrinkwrap licenses, Southern California Law Review 68:1239.

43  

ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996); M.A. Mortenson Co., Inc. v. Timberline Software Corp., 998 P.2d 305 (Wash. 2000). Much of the following analysis, and indeed this report, assumes that courts will continue to uphold such licenses. Licenses that restrict the further use and distribution of published data are also questionable on the ground that they are preempted by copyright law. See discussion in Section 5.3.1.2.

44  

An additional development in this area is the “browse-wrap” license, to which the customer purportedly assents by browsing the Web site. The validity and enforceability of browse-wrap licenses is largely unsettled. An American Bar Association (ABA) committee is studying browse-wrap licenses and is expected to make recommendations on enforceability and other issues. See ABA working group participants formulating guidelines for “browsewrap” contract terms, 71 U.S. Law Week (BNA) 2662 (Apr. 22, 2003).

45  

The unconscionability doctrine has been developed under the Uniform Commercial Code (UCC), adopted in some form by all states. See L. Lawrence, Anderson on the Uniform Commercial Code § 2-302:9 (2003). The courts are divided on the applicability of the UCC to transactions involving information. See Anderson on the Uniform Commercial Code § 2-105:81, available at 2003 WL, ANDR-UCC § 2-105:81 (software). Recently, the American Law Institute adopted revisions to articles 2 (which governs sales of goods) and 2A (which governs

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

contract usually will be enforced if they are prominently called to the attention of the consumer. This doctrine seems unlikely to limit restrictive licensing terms in the context of negotiated licenses for geographic data and works, especially between providers and government agencies. Although onerous terms in online licenses offered to the general public might be vulnerable to attack, on the whole it seems unlikely that courts will significantly limit the reach of shrink-wrap and online licenses.

Conclusion: Licenses of data are a type of contract in which the data provider agrees to the licensee’s right to access or use data, usually with restrictions as to the duration or scope of the use. Licenses (including shrink-wrap and click-wrap licenses) are a form of transaction increasingly favored by vendors for geographic data. Courts have upheld shrink-wrap licenses that protect uncopyrightable data compilations and are likely to uphold such licenses involving geographic data, although this area of the law is in a state of flux.46

5.3.1.1 UCC

The enforceability and interpretation of geographic data licenses may also be affected by article 2 of the UCC, adopted in some form in every state except Louisiana. The UCC governs the “sale of goods,” but has not expressly defined “goods” as either including or excluding information. Additionally, licenses may not be deemed “sales” for the purposes of the UCC. Courts considering these issues have disagreed on whether the UCC governs transactions in software (where the vendor often licenses its use). The American Law Institute and the National Conference of Commissioners on Uniform State Laws (NCCUSL)47 recently have approved a revision to the UCC’s definition of goods that expressly excludes “information.”48 In states that adopt the revision, the UCC will not apply to transactions in

   

leases) of the UCC, which exclude “information” from the definition of “goods.” Under the amendments, the UCC will not cover transactions involving the transfer of information. See ALI membership backs proposed revisions to sales, lease articles of UCC, 71 U.S. Law Week (BNA) 2744 (May 27, 2003).

46  

As with proposed database protection, there is little evidence that the increased incentives for database production afforded by licenses that restrict the use of published facts are warranted. See Section 5.2.6.

47  

These bodies draft uniform state laws and proposed revisions, which become effective when adopted by state legislatures.

48  

ALI membership backs proposed revisions to sales, lease articles of UCC, 71 U.S. Law Week (BNA) 2744 (May 27, 2003).

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

information, although it may apply to the sale of goods that also contain information (e.g., an automobile that contains a computer). The precise scope of coverage will be determined by the courts.

The UCC could be significant because it provides a number of rules that govern sales transactions when the parties fail to specify their intent. For example, if the parties fail to include provisions dealing with warranties, the UCC provides for implied warranties of merchantability and fitness for a particular use. There is also a well-developed body of law under the UCC dealing with the scope and meaning of such concepts as “unconscionability.” Thus, the UCC might provide rules governing sales of geographic data where data and other information are deemed “goods” within the meaning of the UCC or where they are incorporated into a tangible product (such as a mapping service in an automobile).49

Conclusion: The UCC provides additional warranties and rights that potentially cover geographic data transactions. Proposed revisions would limit the UCC’s applicability to geographic data.

5.3.1.2 Other Doctrines Affecting Contract Validity and Interpretation

Other doctrines sometimes invoked to limit the reach of onerous contract terms are pro-competitive policies (see discussion of antitrust in Section 5.3.1.4), the First Amendment, and preemption. Copyright preemption has been argued as a basis for invalidating contracts that purport to limit the use, copying, or distribution of publicly known facts.50

Preemption of contractual protection for published facts could be important in the context of licensing geographic data, particularly where the data are widely disseminated although ostensibly under restrictive licenses. For example, suppose that a government agency agreed to a license that allowed it to post data on its Web site, but required it to limit viewers’ rights to disseminate or use the data further. A court might find such restrictions invalid because of the copyright statute’s policy of permitting the free use of uncopyrighted factual material. To date, courts generally have rejected arguments that copyright preempts contract rights,51 thus permitting contracts to confer protection on factual material

49  

Space limitations preclude a detailed analysis of contract terms allocating liability between vendor and purchaser or licensee.

50  

ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996).

51  

The reasoning of ProCD v. Zeidenberg is not uniformly accepted, however. See Wrench LLC v. Taco Bell Corp., 256 F.3d 446 (6th Cir.), reh’g en banc denied

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

where copyright would not. Nevertheless, the Supreme Court has yet to address this issue.

Conclusion: Courts sometimes invoke competition policy, the First Amendment, and copyright preemption to invalidate or limit contract terms. These doctrines could be invoked to limit the enforcement of license terms that restrict the free flow of public or widely disseminated information. In most circumstances involving licenses of geographic data, such a result would go beyond current law.

5.3.1.3 Uniform Computer Information Transactions Act (UCITA)

In 1999, the NCCUSL approved the UCITA, a model law for consideration by state legislatures. Designed to create a unified approach to the licensing of software and information, the draft has drawn criticism from many consumer and industry groups. As of early 2004, only 2 states—Virginia and Maryland—had adopted UCITA, although it has been considered in as many as 20 states. In the meantime, several states, including Vermont, Iowa, and North Carolina, have enacted “bomb-shelter” legislation, designed to protect their citizens against the more onerous aspects of UCITA. Other states are considering such legislation. Recently, NCCUSL decided not to expend further resources in support of UCITA, although it has not withdrawn the proposal.52

If widely adopted, UCITA would likely validate licensing arrangements that might be challenged under current law, such as whether a valid contract was formed or whether certain terms are enforceable. Overall, however, UCITA’s impact would probably not be dramatic, since courts are already upholding licensing agreements involving digital media and online transactions.

Conclusion: The Uniform Computer Information Transactions Act (UCITA) is a controversial attempt to codify existing licensing law for digital media and online transactions. Widespread adoption would provide

   

(2001), cert. denied, Taco Bell Corp. v. Wrench LLC, 534 U.S. 1114 (2002). See also D. J. Karjala, 1997, Federal preemption of shrinkwrap and on-line licenses, Dayton Law Review 22:511 (arguing that ProCD was wrongly decided on the preemption issues).

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

more certainty regarding the validity of restrictive licenses, although the net effect is likely to be small.

Conclusion: Although technological change has, on the one hand, made it more difficult to limit data use and redistribution, the combination of technology and contract or licensing law means, on the other hand, that data providers have the means to impose license or contract terms that limit the use or redistribution of data, a degree of control that has not been feasible for information published in paper media. In such instances, these contract or license rights have the same effects as traditional intellectual property rights, such as patent or copyright. Thus, the possibility that information providers may “lock up” geographic data must be considered and dealt with in an appropriate manner when contracting for acquisition or dissemination of geographic data and works.

5.3.1.4 Antitrust Law

Licensing arrangements are also subject to scrutiny under the antitrust laws. Potential violations include tying arrangements (in which the availability of a license for one kind of service or product in which the vendor has market power is conditioned on acceptance of a license on another service or product), a refusal to license, exclusive licenses, and blanket licenses such as those involved in the American Society of Composers, Authors, and Publishers (ASCAP), an organization that licenses its members’ music.53 Although the federal government is not subject to antitrust liability, and states and their political subdivisions generally are not liable, private actors are immune only when acting under the direction of the governmental entity. A more detailed discussion of antitrust issues is beyond the scope of this report. Additional information may be found in guidelines issued by the Department of Justice and the Federal Trade Commission.54

53  

Blanket licenses were held legal in Broadcast Music, Inc. (BMI) v. Columbia Broadcasting System, Inc., 441 U.S. 1 (1979). The Supreme Court ruled that the policy of both ASCAP and BMI of offering only blanket licenses was not a per se violation of the Sherman Act.

54  

U.S. Department of Justice and Federal Trade Commission, 1995, Antitrust Guidelines for the Licensing of Intellectual Property, available at < http://www.usdoj.gov/atr/public/guidelines/ipguide.htm>.

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

Conclusion: Antitrust issues may be significant for data providers who include anticompetitive restrictions in licenses. Federal, state, and local governments generally are not liable under the antitrust laws.

5.4 FEDERAL DATA ACQUISITION AND MANAGEMENT

The decision to acquire data under license rather than by outright purchase and, if so, whether to obtain broad use and redistribution rights must be made case by case. In each instance, agencies should consider whether their missions or mandates55 require or suggest that the data in question should be made freely available to constituents, including, where applicable, the general public.56 This often will be the most significant step in the analysis, and agencies must exercise caution to avoid the inclination to give priority to budgetary and other considerations. They especially must avoid the temptation to construe missions narrowly so as to justify the acquisition of restricted data when the public would be better served if data were more freely available.

The second step should focus on the application of regulations affecting information policy, such as the Office of Management and Budget (OMB) circulars, the FARs, and other generally applicable regulations affecting information policy. As explained below, when agency missions do not require dissemination of, or public access to, data, we tentatively conclude that OMB Circular Nos. A-130 and A-16 permit federal agencies to acquire data subject to restrictions or limited rights. We reach a similar result concerning OMB Circular No. A-76 and the 2003 U.S. Commercial Remote Sensing Policy, concluding that although these policies may require outsourcing of data acquisition, they do not automatically mean that vendors can restrict data rights. The most specific directives on data acquisition come from the FARs, which permit the acquisition of “limited rights” data where the government does not pay the full cost of producing the data.

55  

We do not propose to undertake that analysis individually for the many agencies that acquire and use geographic data. Chapter 8 leads the reader through a general decision sequence for agencies.

56  

The obligation to make information public may be either implicit, where public access is required to achieve other goals, or explicit, as in the U.S. Department of Agriculture’s obligation to “diffuse among people of the United States, useful information on subjects connected with agriculture.” 7 U.S.C. § 2201.

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

Other provisions of law may require that geographic data be made available to members of the public. The accountability of agencies for their decisions, including but not limited to defending those actions in court, may require that agencies disclose information on which they relied in making policy and in taking specific actions. The Freedom of Information Act (FOIA) implements this policy by providing for any person to obtain access to agency records upon request, subject to enumerated exemptions. Licensed geographic data might be exempt from FOIA if, for example, they do not fall within FOIA’s definition of records or if they constitute trade secrets or other confidential information. Acquiring data that are important to policy and decision making on terms that prevent their disclosure, however, could jeopardize an agency’s ability to defend its actions. Moreover, recent changes expanding access to federally funded data and the Data Quality Act impose additional mandates for data access that may affect licensed geographic data.

5.4.1 Making Geographic Data Public

Does the law require federal agencies to acquire geographic data under conditions that allow the agency to make it available to the public?57 The benefits of a robust public domain and ready access to public domain information have been documented in a number of reports from the National Academies,58 and are discussed in Chapter 7, Section 7.2. Further evidence of the importance of such a policy is the Copyright Act’s prohibition on the federal government’s claiming copyright in the information it produces.59 Consistent with these benefits, there are a number of statutes, regulations, and policies that point in the direction of making data, including geographic data, freely available to the public.

In 2001, the National Commission on Libraries and Information Science surveyed existing federal statutes relating to the dissemination of information60 and identified 52 major public laws adopted between 1995 and

57  

This question is separate from whether agencies should acquire geographic data with limitations on the right to make the data publicly available.

58  

See, for example, NRC, 1999, A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases, Washington D.C., National Academies Press.

59  

17 U.S.C. §105. Contractors that produce information for the government may claim copyright protection, however.

60  

See A Comprehensive Assessment of Public Information Dissemination, Vol. 1, at p. xiv, available at <http://www.nclis.gov/govt/assess/assess.vol1.pdf>.

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

2000 that require federal agencies to collect and disseminate information to specialized audiences or the public.61 Of course, there were more already on the books, and a comprehensive analysis of so many statutes is not possible in this report. Instead, this section surveys the most important authorities.

5.4.1.1 OMB Circular No. A-130 and the Paperwork Reduction Act

Agencies frequently cite OMB Circular No. A-130,62 which implements the Paperwork Reduction Act.63 For all executive branch agencies, including the military,64 Circular A-130 requires the wide dissemination65 of government information within the federal government and to the public, referencing a broad array of benefits accruing from the dissemination of information, including the furtherance of democratic processes and scientific research. Circular A-130 also discourages “improperly restrictive” practices; for example, it directs agencies to “[a]void establishing, or permitting others to establish on their behalf, exclusive, restricted, or other distribution arrangements that interfere with the availability of information dissemination products on a timely and equitable basis.” Data are to be made available at the cost of dissemination, although A-130 also

   

The report, commissioned by Congress in connection with the proposed decommissioning of the National Technical Information Service, discussed then-current requirements for information dissemination by the federal government and changes needed to further dissemination.

61  

See Index to a Compilation of Recent Federal Statutes Pertaining to Public Information Dissemination, Appendix 33, available at <http://www.nclis.gov/govt/assess/assess.appen33.pdf>.

62  

Available at <http://www.whitehouse.gov/omb/circulars/a130/a130trans4.html#5>.

63  

44 U.S.C. §§ 3501–3521.

64  

The report focuses on data policies of and acquisition by the civilian agencies. Although some of the authorities cited apply to the military, others such as the FARs, do not. Military acquisitions are governed by the Defense Acquisition Regulations (DARs). See <http://www.acq.osd.mil/dp/dars/dfars.html>.

65  

Circular A-130 defines dissemination as “the government initiated distribution of information to the public.” Dissemination is an affirmative obligation, irrespective of whether information is requested by anyone, in contrast to the FOIA’s obligation for agencies to make “records” available upon request. See Section 5.4.3.1.

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

provides for exceptions, including a general one at the discretion of the Director of OMB.

The threshold question for present purposes is whether data obtained under license constitutes “government information,” thereby triggering A-130’s provisions. A-130 defines government information as “information created, collected, processed, disseminated, or disposed of by or for the federal government.” Although we know of no cases expressly addressing the point, it is arguable whether data collected by private-sector firms and licensed to government fit this definition. Furthermore, A-130 nowhere mentions licenses or licensed information. Nevertheless, the foregoing definition is quite broad. Furthermore, A-130 contains several references to data that are maintained by sources other than the government. In what follows, we assume that A-130 applies to data that are acquired through licensing.66

At the same time, Circular A-130 indicates that proprietary rights should be respected. For example, in the section entitled “Basic Considerations and Assumptions,” A-130 recognizes that the free flow of information for scientific research is subject to “applicable national security controls and the proprietary rights of others.” Additional discussion in Appendix IV recognizes that federal grantees and contractors may copyright information, although the federal government may not. That section also suggests, however, that copyright as such is not a barrier to disclosure under FOIA,67 and by implication, that copyright would not be a barrier to dissemination under A-130. Data, whether copyrighted or not, however, might be exempt from access or dissemination if one of the other FOIA exemptions applies.

A-130 also recognizes that states and localities are important sources of information utilized by federal agencies. A-130 recognizes that federal agencies must cooperate with state and local governments in the management of information and must consider the impacts of the agencies’ activities on them. In another section, A-130 directs agencies to “[e]nsure

66  

One interpretation of the scope of A-130 is that “government information” is coextensive with the definition of “records” under FOIA. A-130 uses the term “government information” in reference to FOIA requirements, and also suggests that the fees authorized by FOIA access limit the fees that can be charged for dissemination under A-130. See Section 5.4.2.1, for discussion of the scope of “records” under FOIA.

67  

Appendix IV notes that FOIA “does not provide a categorical exemption for copyrighted information,” suggesting that copyrighted information may in some instances be released in response to an FOIA request.

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

that Federal information system requirements do not unnecessarily restrict the prerogatives of state, local and tribal governments.”

Some state and local providers of geographic data and works told the committee that they wish to retain the ability to charge other potential customers for the use of their databases. Their ability to do so may be impaired by free or low-cost dissemination of data they provide to federal agencies. A-130’s recognition of the interests of state and local governments, together with its explicit recognition of proprietary rights, could be construed to permit agencies to acquire geographic data and works with restrictions on the distribution to other agencies or to the public, at least where such restrictions do not violate other legal requirements, which are discussed below.

Conclusion: OMB Circular No. A-130 requires the federal government to disseminate data in which it has unlimited rights (full ownership) at no more than the cost of distribution. However, A-130 probably does not prohibit agencies from agreeing to licenses that restrict redistribution or from honoring such restrictions once they have been agreed to.

5.4.1.2 OMB Circular No. A-16 and the National Spatial Data Infrastructure

Also strongly pointing in the direction of making data freely and widely available is OMB Circular No. A-16,68 which provides for “improvements in coordination and use of spatial data,” and directs the implementation of the National Spatial Data Infrastructure.69 Although much of the circular concerns the coordination of data acquisition and management within the federal government, it endorses sharing and dissemination of geographic data among government agencies and with “non-federal users.” At other points, however, the circular discusses “efficient” and “cost-effective” collection and maintenance of data, directing agencies to build on local data where possible. Thus, the circular does not say how data are to be acquired, although the general sense is that geographic data should be widely shared with the public. Restrictions on the ability of agencies to

68  

Available at <http://www.whitehouse.gov/omb/circulars/a016/a016_rev.html>.

69  

Circular A-16 also indicates that it incorporates Executive Order 12906 (Coordinating Geographic Data Acquisition and Access: The National Spatial Data Infrastructure), which required agencies to “adopt a plan…establishing procedures to make geospatial data available to the public, to the extent permitted by law, current policies, and relevant OMB circulars.”

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

share data widely therefore would run contrary to that policy, even if not specifically prohibited.

Conclusion: OMB Circular No. A-16, like many federal laws, strongly favors the public availability and dissemination of government data, which would include geographic data acquired by the government. Like A-130, however, A-16 also recognizes proprietary rights and does not require that data be acquired with unrestricted rights.

5.4.1.3 Federal Activities Inventory Reform (FAIR) Act and OMB Circular No. A-76

A somewhat different conclusion may be suggested by OMB Circular No. A-76, recently revised. Circular A-76 implements the FAIR Act,70 and requires agencies to justify engaging in “commercial” activities. Activities are presumed to be commercial unless they can be shown to be “inherently governmental.” Inherently governmental activities are those that require “substantial discretion,” according to A-76.71

A-76 could be construed as requiring outsourcing of acquisition or dissemination of geographic data, except where a particularized justification can be made for doing otherwise. However, even if A-76 and the FAIR Act require outsourcing of data requirements in some instances, that requirement does not dictate the conditions of such arrangements, such as use and redistribution rights. The reading of A-76 most consistent with other statutory and regulatory directives is that when A-76 requires an agency to outsource the acquisition of geographic data, the contract may provide for either restricted or unrestricted rights in the data. That determination is governed by other legal requirements.72

70  

Pub. L. No. 105-270.

71  

This definition has become a point of contention in litigation by two government employee unions challenging the revisions to A-76. The FAIR Act defines inherently governmental as those activities requiring the exercise of “discretion,” an easier standard to meet than “substantial discretion” as set forth in the circular. See Federal union files suit asking court to declare revised OMB Circular A-76 illegal, U.S. Law Week (BNA) 71:2829 (July 1, 2003); AFGE becomes second federal worker union to file lawsuit challenging A-76 revisions, U.S. Law Week (BNA) 72:2032 (July 15, 2003).

72  

Similarly, the Commercial Space Act of 1998 requires the Administrator of the National Aeronautics and Space Administration (NASA), when consistent with scientific requirements and other conditions, to acquire “space science data” from a commercial provider. 42 U.S.C. § 14,713. However, this section also

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
5.4.1.4 Commercial Remote Sensing Policy

On April 25, 2003, the Office of the President announced its “U.S. Commercial Remote Sensing Policy.” The policy deals with a number of topics not directly of interest in this report, but one relevant feature is a mandate to support a “robust U.S. commercial remote sensing industry” to “augment and potentially replace” some government functions and contribute to military and intelligence objectives.73 In furtherance of this and other goals, the policy directs federal agencies to “utilize U.S. commercial remote sensing space capabilities to meet imagery and geospatial needs.”74 Similar directives apply to military and intelligence services.

Like OMB Circular No. A-76, the policy requires outsourcing of remote-sensing data collection where feasible. Similarly, the policy does not dictate the terms on which remote-sensing data can be acquired. Thus, it does not appear to dictate whether data should be acquired with unrestricted rights, or can be licensed on a more limited basis.

Conclusion: OMB Circular No. A-76 and the Commercial Remote Sensing Policy require outsourcing by the federal government of all functions that are not “inherently governmental.” Neither policy, however, specifies the terms on which data should be acquired or when broad use and redistribution rights should be obtained. Thus, policies that otherwise encourage or require the dissemination of geographic data need not be affected by outsourcing requirements. This issue has not been legally tested, however.

5.4.1.5 FARs

Agency acquisitions of data, as with their acquisitions of other goods and services, are governed by FARs, both those that are generally applicable, which are discussed below, and those adopted by specific agencies.75

   

states that “[n]othing in this subsection shall be construed to preclude the United States from acquiring, through contracts with commercial providers, sufficient rights in data to meet the needs of the scientific and educational community or the needs of other government activities.”

73  

Fact Sheet, U.S. Commercial Remote Sensing Policy § III (Apr. 25, 2003). The fact sheet indicates that the policy is not intended to have the force of law.

74  

Id. at p. 4.

75  

Provisions dealing with the acquisition of data are found in 48 C.F.R. Parts 27 and 52. Department of Commerce Acquisition Regulations contain no additional

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

In general, FARs specify contract terms in more detail than any of the statutes and regulations discussed earlier.76

At the outset, the regulations recognize that agencies may need to acquire data for many different purposes.77 Perhaps for this reason, agencies are allowed a great deal of latitude in how they contract for data acquisition. Contracts for data must provide for the respective rights of the parties in the data acquired.78 The regulations set forth policies for the acquisition of data and permit agencies to adopt alternative policies and contract clauses only to the extent necessary to meet the requirements of other laws.79

The FARs make a fundamental distinction between data produced under federal contracts and data gathered at private expense. Thus, the FARs give the government “unlimited rights” in data “first produced in the performance of” the contract, while recognizing the contractor’s right to copyright scientific articles containing or based on data first produced under the contract or with the agency’s permission.80 In contrast, limited rights data is defined as data developed through private expense, implying that data developed through government funding should not be

   

provisions pertaining to the acquisition of data. Further analysis of agency-specific acquisition regulations is beyond the scope of this discussion. 48 C.F.R. Parts 27 and 52 are undergoing revision at this writing. See Federal Acquisition Regulation; FAR Part 27 rewrite in plain language, 68 Fed. Reg. 31,790 (May 28, 2003).

76  

The Brooks Architect-Engineers Act (the “Brooks Act”), Pub. L. No. 92-582, provides for qualification-based, negotiated contracting for the services of architects and engineers, which has been interpreted to include some mapping and surveying services (48 C.F.R. § 36.601-4). Recently, the Department of Defense (DoD), the General Services Administration (GSA), and NASA solicited comments on the scope of the Brooks Act’s application to mapping (DoD/GSA/NASA, Federal acquisition regulations; application of the Brooks Act to mapping services, request for comments, 69 Fed. Reg. 13,499 [Mar. 23, 2004]). Brooks Act contracts are nonetheless subject to the generally applicable contracting requirements of the FARs, however, except where the general requirements conflict with the specific Brooks Act regulations of 48 C.F.R. Part 36.

77  

48 C.F.R. § 27.402. For a general discussion, see W. N. Keyes, 1996, Government Contracts Under the Federal Acquisition Regulation §§ 27.21–27.26, Eagan, West Information Publishing Group.

78  

48 C.F.R. § 27.403. This section directs the agency to use the data rights clauses provided in section 52.227-14, which has five alternative versions, “where determined to be appropriate,” but also allows other versions to be used.

79  

48 C.F.R. § 27.101.

80  

48 C.F.R. § 27.404(f).

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

subject to limited rights.81 Variation from this standard form, however, is permitted to allow the government to obtain limited-rights data and to limit its uses of the data to those specified, particularly when the data are obtained for particular purposes not inconsistent with restricted uses.82

The provisions governing cooperative research and development activities provide even more latitude, and do not recommend or require specific clauses.83 This regulation also makes clear, however, that the government’s rights should be limited only in the event, and to the extent, that the contractor makes a substantial contribution of its own resources in developing the data.84

Conclusion: The FARs specify clauses concerning data rights to be included in data acquisition contracts and require agencies to acquire unlimited rights in data developed at government expense.

Conclusion: Under the FARs, restrictions on a government agency’s right to use or distribute data are appropriate when the government is not compensating the vendor for all of the costs of producing the data (as when the government acquires a nonexclusive right to use preexisting geographic data or when the government contracts to pay only a portion of the cost of acquiring new data).

5.4.2 Other Legal Requirements for the Disclosure of Data

In addition to the foregoing authorities that govern agencies’ data management practices generally, there are a number of statutes and regulations that require the government to disclose data in particular circumstances. These provisions usually apply to geographic data. Several of the more prominent ones are summarized below.

81  

With respect to data not first produced under the contract, the contractor is prohibited from delivering such data pursuant to the contract unless the contractor provides the government with a license to use the data on the same terms as provided for data produced under the contract. The contractor is permitted to retain proprietary rights in computer software, however, and to license software to the government. In that case, the government obtains “restricted rights” to the software. 48 C.F.R. § 52.227-14.

82  

48 C.F.R. §§ 27.404, 27.405.

83  

48 C.F.R. § 27.408.

84  

Id.

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
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.

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

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.

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

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).

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
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).

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

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.

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

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

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

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>.

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

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.

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

This page intentionally left blank.

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

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

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×

and licenses to efficiently support an active information commons and a thriving marketplace?

Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 103
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 104
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 105
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 106
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 107
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 108
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 109
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 110
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 111
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 112
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 113
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 114
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 115
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 116
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 117
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 118
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 119
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 120
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 121
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 122
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 123
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 124
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 125
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 126
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 127
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 128
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 129
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 130
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 131
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 132
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 133
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 134
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 135
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 136
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 137
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 138
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 139
Suggested Citation:"5 Legal Analysis." National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press. doi: 10.17226/11079.
×
Page 140
Next: 6 Economic Analysis »
Licensing Geographic Data and Services Get This Book
×
Buy Paperback | $100.00 Buy Ebook | $79.99
MyNAP members save 10% online.
Login or Register to save!
Download Free PDF

Geographic data are used in all sectors of society to support a huge range of applications ranging from emergency response to land-use planning to location-based services. In the past, government agencies typically acquired ownership of such data from private-sector and other data producers and distributed these data without restriction. Licensing--whereby the producer may restrict redistribution--has emerged as an alternative business model that agencies must now consider among a suite of procurement options. The report highlights licensing perspectives and experiences of major stakeholder groups and examines the pros and cons of licensing. It concludes that licensing may be a viable option in some instances and advises agencies on how to best serve societal interests.

  1. ×

    Welcome to OpenBook!

    You're looking at OpenBook, NAP.edu's online reading room since 1999. Based on feedback from you, our users, we've made some improvements that make it easier than ever to read thousands of publications on our website.

    Do you want to take a quick tour of the OpenBook's features?

    No Thanks Take a Tour »
  2. ×

    Show this book's table of contents, where you can jump to any chapter by name.

    « Back Next »
  3. ×

    ...or use these buttons to go back to the previous chapter or skip to the next one.

    « Back Next »
  4. ×

    Jump up to the previous page or down to the next one. Also, you can type in a page number and press Enter to go directly to that page in the book.

    « Back Next »
  5. ×

    Switch between the Original Pages, where you can read the report as it appeared in print, and Text Pages for the web version, where you can highlight and search the text.

    « Back Next »
  6. ×

    To search the entire text of this book, type in your search term here and press Enter.

    « Back Next »
  7. ×

    Share a link to this book page on your preferred social network or via email.

    « Back Next »
  8. ×

    View our suggested citation for this chapter.

    « Back Next »
  9. ×

    Ready to take your reading offline? Click here to buy this book in print or download it as a free PDF, if available.

    « Back Next »
Stay Connected!