NextGen for Airports, Volume 4: Leveraging NextGen Spatial Data to Benefit Airports: Guidebook (2016)

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32 | LEVERAGING NEXTGEN SPATIAL DATA TO BENEFIT AIRPORTS Financial and Legal Considerations of Spatial Data4 T his chapter of the guidebook considers the financial and legal considerations of working with spatial data. It examines the potential for airports and airport sponsors to receive financial gains through the monetization or the selling of spatial data to third parties, and further considers the legal liabilities related to the use and distribution of spatial data by airports. Both of these issues have a strong legal connection, so the research and documentation for this chapter were conducted by the Washington Progress Group, LLC, and the research team’s legal experts. Accordingly, the tone of the writing and the methods used to convey and document the information differ from other sec- tions in this guidebook. Prospects for Monetization of Airport GIS Data Airports collect a variety of GIS data sets that may have the potential for reuse by third parties. Typical GIS data sets gathered by airports deal with obstructions to takeoff and landing areas, but other data sets frequently include climatological information, wildlife attractants on or around the airport, storm water management systems, surrounding buildings and structures, and so forth. On the basis of the research, meetings, and interviews conducted for ACRP Project 09-12, it appears that airports have not explored the potential for selling to third parties some of the GIS data that they generate for their own purposes. Certainly, some data derived from FAA-required airport surveys could be useful to airlines seeking to improve their navigation procedures. Airlines typically pay aviation engineering consultants for such information, so airports may find that making this particular data set available to airlines could offer a revenue stream that helps to offset the costs of the required surveys. Airports are advised to refer to their chartering documents to make sure nothing in these documents prohibits the airport from charging for data or otherwise recovering costs. Publicly owned airports are subject to state or local freedom of information laws that treat airport GIS data as a public record and require that data to be surrendered upon request. Legal cases have tested whether GIS data is exempt. One such case—Sierra Club v. Orange County—went to the California Supreme Court in 2013, resulting in a decision that GIS databases are not exempt from the Public Records Act (California’s equivalent to the federal Freedom of Information Act, or FOIA). These laws effectively negate the prospects for public airports selling GIS data. If legal constraints are not a deterrent, airports considering a foray into the business of selling GIS data should take into consideration the track record of entities that have attempted to do so. The findings from the Open Data Consortium (ODC) project1 suggest that most agencies that have attempted to sell public data failed to realize significant revenues, and in many cases, the effort lost revenues.2 The ODC gathered 265 GIS professionals from city, county, metropolitan, regional, state, and federal gov- ernment levels to analyze the merits of “fee versus free” as a data distribution policy. Some examples from the project highlight the challenges of making money from selling GIS data:

Financial and Legal Considerations of Spatial Data | 33 • Ventura County in California sold its data for $1 per parcel. It raised $15,000 per year, compared with the annual cost of nearly $1 million to maintain a 10-person team that updated GIS data and created GIS applications. • San Francisco (city and county) reported that it cost more in staff time to sell their GIS data than the revenues they received. • A March 2001 study by KPMG Consulting, Inc., found that “U.S. agencies reporting data income had revenues equal to 2% of their expenses.”3 GIS experts confirm that little has changed in the course of a decade and caution against expecting a meaningful ROI from attempts to monetize GIS data.4 The practical reality is that even when GIS data is a strategic asset, converting it into a money-generating commodity entails costs that frequently outweigh the value. Airport executives establishing a distribution policy for GIS data will be informed by “give-away” models and “pay” models, described below. Overall the practice has been that the federal and state governments and their subdivisions and regulated entities offer data to the public for free. Good reasons exist for an airport to adopt the give-away practice even aside from the legal rules that may require it: free dissemination of GIS data demonstrates transparency and can contribute to productive business-to-business relations. Airport executives are focused on global policies and decision making for the airport, so their perspectives may be somewhat distant from those of air operations personnel. As a result, executives may sometimes fail to recognize how the airport’s GIS assets could be helpful to planning for higher capacity. If an airport works in partnership with airline operators by supporting their efforts to design RNP procedures aimed at achieving increased operations, economic benefits may inure to the airport as well as the airline.5 Sharing data for free can support such civic concerns as regional planning, public safety, and the man- agement of natural resources, engendering positive relations in the community. The “free” model of data distribution may take various forms. One model is Open Data Commons, an Open Knowledge Foundation project dedicated to providing a set of legal tools to help entities pro- vide and use open data. Open Data Commons proposes three types of license for free data: • Public Domain—no restrictions, meaning users can do what they want with the data; • Attribution—use of the data requires attribution, but nothing beyond that; and • Open Database—use of the data requires that users also share any “value adds” as an open data set. With so much data being accessed via the Internet, establishing the user’s consent to a license is generally accomplished online by requiring the user to check a box to indicate agreement with terms specified by the license holder prior to downloading the subject files.6 Open Knowledge International (a nonprofit organization created by the Open Knowledge Founda- tion) offers an Open Data Handbook7 that provides practical advice and steps for managing data in a way that keeps access open. Recommendations include: keep the data set simple (it is not necessary to include every data file); communicate as often as possible with users to determine their needs; and take time to allay any fears within the organization about making the data available to external users. Naturally, other steps include determining the format of the data, organizing a central catalog to list the data sets, and posting the catalog and the data sets on the web. Methods for offering data for free online include the following: • Placing data on the airport’s or airport sponsor’s existing website for download.

34 | LEVERAGING NEXTGEN SPATIAL DATA TO BENEFIT AIRPORTS • Placing data on a third-party site where other data sets of a similar nature reside. Large data sets can be made available on sites that allow public sector agencies to store massive quantities of data for free. It is advised that airports check the policies of third-party sites in advance to ensure the platform does not restrict access or impose conditions to which the airport or airport sponsor does not agree. • Using a file distribution system that splits the cost of distributing files across all of the individuals accessing those files.8 This kind of system is efficient for very large volumes of data (such as sharing movies). • Using an application programming interface (API),9 which allows a select portion of a database to be available (rather than all of the data in bulk as a large file), and for the file to be updated in real time. APIs can be costly to develop and, if they are not maintained, access to the data may be impeded. Regardless of the format of the data or the method of distribution, a crucial step is making the data discoverable so users can find it. Tools are available online that catalog data, making it possible for users to find it.10 Airports also can register their databases with any one of the many aviation database websites. For the intrepid airport determined to sell its data, the mechanisms for charging fees from users are well established. Fee-based models for data distribution are commonplace for purveyors of information and customers: • For well over a decade, data sets have been available for purchase on CD-ROM, normally coupled with a “shrink-wrap license” (i.e., by removing the cover of the CD-ROM, the user accepts the license terms). • As use of the Internet has expanded, data sellers have increasingly offered users the ability to down- load data sets to their own computers, either through subscriptions (allowing access for a limited time period for a fee) or through pay-as-you-go arrangements (in which each download of data is separately charged). • More recently, data sellers have begun to provide cloud-based services under which the data resides permanently on the seller’s server and the paying user accesses it on demand by going to a password-protected Internet address (URL). Should an airport desire assistance with formulating its database, businesses known as “conversion firms” will build a data set to meet the client’s specifications. Conversion firms are usually contracted to build special-purpose data sets.11 Other firms make money by selling tools for manipulating GIS information rather than by selling the information itself.12 In sum, GIS data is not a likely candidate for monetization by most airports due to legal constraints stemming from public records laws, nor has it proven economically viable in most cases. However, GIS data is local by its very nature, and special circumstances may exist under which the data collected by an airport has value to a third party. The technical and business aspects of charging for data are now relatively uncomplicated when accomplished through the Internet. Ownership and Protection of GIS Data This section of Chapter 4 discusses principles, rules, and constructs for analyzing ownership of GIS databases. Because the methods of generation and the derivation of GIS data vary, each data set—

Financial and Legal Considerations of Spatial Data | 35 including and especially all component and/or source data and information—must be analyzed sepa- rately for ownership interests. This section also suggests concepts, methods, and tools for protection of databases, and the potential for compromise of ownership rights by disclosing or sharing data with public agencies. AGIS Program and GIS Data Ownership For the purposes of NextGen, the FAA created an initiative to streamline the airport survey process and centralize airport data storage into one integrated, web-based GIS called “Airports GIS (AGIS).”13 The FAA intends that the airport or airport sponsor be the owner of any GIS data it submits to AGIS.14 As owner of the AGIS data, the airport sponsor must define and protect its ownership rights in GIS databases through contractual arrangements such as statements of work (SOWs) with data providers and surveyors. The AGIS approach to ownership of airport databases is consistent with general laws and principals applicable to GIS database ownership and protection. Ownership in a GIS database may be protected by copyright, or protected pursuant to a contract between the generator and the user. In addition to legal protection, unauthorized use can be deterred through technical means. On the other hand, submission of GIS data to AGIS may make the material vulnerable to public disclo- sure by the federal government under FOIA, addressed specifically below. Patent Protection If GIS data is generated using a unique and innovative device, patent protection of the device may be available.15 Absent a patentable device or machine, however, patent protection for a process, includ- ing processes embodied in computer software, is very limited. For more information, see Alice Corpora- tion Pty. Ltd. v. CLS Bank International et al., (Sup Ct.) June 19, 2014.16 Copyright Protection For the purpose of copyright, databases are “compilations.” As defined by the Copyright Act of 1976, a compilation is a work formed by the collection and assemblage of preexisting materials or data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. Copyright in a compilation extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply an exclusive right in the preexisting material. In no case does copyright protection of an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described explained, illustrated, or embodied in such work. This statutory language has been interpreted to exclude copyright protection of facts as well.17 Application of these principles to computerized databases has been well stated by legal scholars as follows: A factual compilation can be protected by copyright law if the selection, coordination, or arrangement of data constitutes an original work of authorship. The facts themselves are not copyrightable. If the factual compilation qualified for copyright protection, the protection would extend only to the selection, coordination, or arrange- ment that made the compilation original. Protection would not extend to the facts contained in the factual compilation. As a result, the facts in a factual compilation may be freely copied. With the computer revolution, many factual compilations are taking the form of computerized databases. With the ease of copying electronic information, “free riders” may take a first database creator’s database, copy the uncopyrightable elements, and make a second competing database without incurring the cost of producing it.18

36 | LEVERAGING NEXTGEN SPATIAL DATA TO BENEFIT AIRPORTS Despite this limitation, which allows legitimate users to extract and re-package or disseminate the underlying factual content, copyrighting the manner of expression is still the primary means available for protecting databases, including GIS. Inherent in this protection are legal enforcement rights and penalties against infringement, subject to fair use and other statutory exceptions.19 Contractual Protection Unauthorized use of GIS databases can also be deterred through contractual means such as clauses in sales or licensing agreements between the database owner and users that prohibit dissemination, re-use, and/or extraction and repackaging of the data. Such “authorized use” agreements—usually in the form of “shrink-wrap” language or comparable language requiring the user to click an online but- ton indicating agreement to such restrictions before getting access to the data—are ubiquitous in the software industry today.20 Technical Protection Unauthorized use can also be prevented through technical means such as encryption, watermarking, or other modifications or enhancements to the document or database that make it physically difficult or impossible to copy or extract the underlying data, or that signal or identify unauthorized derivative sourcing.21 GIS and Disclosure under FOIA Airports are invited to upload qualified survey data into the AGIS database.22 Inclusion in the AGIS database may subject otherwise-proprietary airport GIS data to public disclosure. Except for explicitly defined categories of records that are specifically excepted, the federal FOIA (5 U.S.C. §552) requires the federal government to make available to the public, for the cost of pro- duction, all records in its possession. The only GIS materials explicitly exempted from FOIA are “geo- logical and geophysical information and data, including maps, concerning wells.” Unless the GIS data in the government’s possession falls under another of the FOIA exemption categories,23 it is subject to disclosure under FOIA. FOIA does provide an exemption from disclosure for “trade secrets and com- mercial or financial information obtained from a person and privileged or confidential.”24 To the extent that an airport develops a data set that has commercial value, consideration should be given to whether inclusion of that material in AGIS might make it discoverable for free under FOIA. If this is a concern or consideration, airport sponsors are advised to explore with the FAA how proprie- tary databases can be included in AGIS without eviscerating their commercial value (e.g., by restricting access to a particular data set to other airport sponsors and/or by requiring permission of the owner airport). A similar concern about unintended disclosure arises if GIS data having commercial value is shared or submitted to state or local governments. Airport sponsors also are advised to thoroughly research state and local FOIA statutes, regulations, and common law before sharing any commercially valuable privately owned databases with government agencies.25

Financial and Legal Considerations of Spatial Data | 37 Potential Liability When Sharing or Providing GIS Data This section discusses whether, on what basis, and to what extent providers of GIS data might be liable to consumers of the data, and suggests ways to eliminate or minimize potential liability. Theories of Liability Although legal scholars have written about the risk of liability inherent in providing GIS information to third parties,26 very few actual legal case decisions exist. Rather, scholars have used the principles that apply to lawsuits against providers of aeronautical charts to predict the potential liabilities of GIS providers.27 However, not all experts agree that aeronautical charting cases are applicable in other situations. GIS liability may depend on whether courts decide that GIS is more like the highly technical tool of an aeronautical chart or more like the ideas and expressions in a book.28 There are at least three theories under which a provider of GIS might be sued for insufficient or errone- ous data: contract, negligence, and strict liability. Contract A GIS provider might be held liable under theories of contract law if it contracted to provide GIS data and then failed to perform or provided inadequate or erroneous data. This liability could extend to third parties explicitly intended to benefit from the GIS data or information.29 Potential damages under contract would be loss of the bargain to the customer and possibly consequential damages. A defense might be breach of contract by the customer (e.g., failing to make progress payments on time as provided in the contract, or preventing performance by the GIS provider, for example by not providing information the GIS provider needs to do the work). To limit an airport’s liability, a contract could also include a disclaimer regarding accuracy or completeness of the data. Such a disclaimer could extend to possible liability to third parties that might be beneficiaries of the contract. Negligence A GIS provider might be held liable under the theory of negligence if it undertook to provide GIS infor- mation and then gave erroneous or insufficient information that led to damage or injury to someone relying on that information, providing that it was reasonable for the GIS provider to have anticipated that the injured party would rely on that information. This theory is described in Section 311 of the Restatement (Second) of Torts (1965), in which it is stated that an entity can be subject to liability if it “negligently gives false information to another,” resulting in “physical harm” caused by “reasonable reliance upon such information.” Liability could arise when either incorrect or incomplete data is sup- plied or the data is misapplied.30 The liability award would be based on actual damage to the person relying on the GIS data, and possibly punitive damages if the error or omission was the result of gross negligence or recklessness. A defense to such an action would be that the injured party contributed to the injury by not being reasonably careful.31

38 | LEVERAGING NEXTGEN SPATIAL DATA TO BENEFIT AIRPORTS Strict Liability Some legal cases have considered charting information (and by analogy, GIS data) as a “product” to which “strict liability” rules apply in the same way that liability rules apply to consumer products. Under this theory, the provider of such data would be liable to someone damaged by defective data, regardless of whether the generator/provider of the data exercised reasonable care.32 The measure of damage would be whatever it takes to compensate the customer (compensatory damages), plus punitive damages if the GIS provider was grossly negligent or reckless. This theory is described in Section 402(a) of the Restatement (Second) of Torts (1965) as follows: (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) the rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the prepara- tion and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. Minimizing Liability The discussion presented so far in this chapter suggests by analogy that both a producer and a ma- nipulator of GIS data could potentially be held liable for errors in that data.33 This potential is espe- cially true if that data is provided to a particular, narrow group of users such as pilots (as opposed to an indeterminate numbers of the general public),34 and if one of the users is injured as a result. Indeed, liability for damages or injuries suffered through reliance on an inaccurate map or survey is not uncommon.35 Some defenses or mitigations to liability may, however, be available. Although not within the scope of this guidebook, the defense of sovereign immunity may under some circumstances be available to publicly funded airports. Whether and to what extent sovereign immunity would apply depends on state and local law, and on the characterization of the activity in question as governmental or “discretionary.”36 Liability might also be avoided by explicitly stating that the accuracy of the data is not guaranteed.37 For example, in Rozny v. Marnul, 250 N.E.2d 656 (Ill. 1969), a surveyor was held liable because he absolutely guaranteed the accuracy of the plat but in First Equity Corp. v. Standard & Poor’s Corp., 869 F.2d 175, 176 (2d Cir. 1989), the corporation was not held liable to someone who relied on its report because it specifically did not guarantee the accuracy or completeness of the information contained within that report. Another way to minimize liability would be by following existing government or professional GIS standards.38 The FAA has issued such standards in AC 150/5300-18. Although these standards are mandatory only for those airports using AIP or PFC revenue to collect data, voluntary adherence to the standards in the FAA’s AC would help minimize an airport’s potential liability. Endnotes 1 Information available online at www.OpenDataConsortium.org. 2 The ODC’s findings are described in the article “Ten Ways to Support GIS Without Selling Data,” by Bruce Joffee, URISA Journal, Vol. 16, No. 2 (2005).

Financial and Legal Considerations of Spatial Data | 39 3 “Geospatial Data Policy Study,” by Garry Sears, KPMG Consulting, Inc., March 28, 2001 (Canada), p. 18. 4 August 2015 interview with Bruce Joffe, Principal, GIS Consultants; and with Gary Darling, for- mer Chief Information Officer for the California Natural Resources Agency. 5 Comments of Tim Haney, Manager of Flight Operations Engineering, Virgin America. 6 Some websites and user agreements contain clauses that require the user to hold the data provider harmless from errors/deficiencies in the data. See, e.g., disclaimer “shrink-wrap” lan- guage of the Montgomery MD DTS-GIS site (http://www.montgomerycountymd.gov/gis/ maps/disclaimer.html); disclaimer language of the Ohio Department of Health (https://www. odh.ohio.gov/privacy/disclaimer.aspx); disclaimer language of OpenSha (http://www.opensha. org/license); FindLaw sample user agreement language (http://smallbusiness.findlaw.com/ intellectual-property/sample-software-license-agreement-provisions.html); St. Mary’s and Mont- gomery Counties, MD, GIS Data Licensing Agreements (http://www.co.saint-marys.md.us/docs/ GISorderform&agreement.pdf) and (http://www.montgomeryplanning.org/gis/documents/ license.pdf). 7 The handbook can be found online at www.OpenDataHandbook.org. 8 Information is available online at https://en.wikipedia.org/wiki/Torrent_file. 9 For a discussion of APIs, see the webpage at Project-open-data.cio.gov/api-basics/. 10 Information about one such tool is available online at http://datahub.io. 11 An example is www.Ramtech-corp.com, which largely supports utilities. 12 Information is available at www.esri.com. 13 A Guide to Airport Surveys, Federal Aviation Administration (2009), p. ii, available at https:// airports-gis.faa.gov/public/data/Airport_Survey_White_Paper.pdf. Nothing in the FAA Airport Grant Assurances is inconsistent with airport sponsors’ ownership of their GIS data. See http:// www.faa.gov/airports/aip/grant_assurances/media/airport-sponsor-assurances-aip.pdf. 14 “The core of the AGIS program places Airport Sponsors and Proponents (AS/P) as the owner of all data for their airport. Through the use of the AGIS system, the AS/P has complete control (outside FAA) of their airport data.” Ibid. p. 2. Although federal government works themselves cannot be copyrighted, the federal government can acquire and hold copyrights of others: “Copyright protection under [USC Title 17] is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.” See 17 U.S.C. §105, avail- able online at http://www.copyright.gov/title17/92chap1.html#105. GIS data can be gener- ated using airport grant funds. See https://airports-gis.faa.gov/public/airportsSteps.html. Works produced under federal government contract or grant can be copyrighted by the contractor or grantee, subject to license rights on the part of the government. See http://www.cendi.gov/ publications/04-8copyright.html#43. State and local governments can determine for themselves whether and to what extent their own materials, or materials of their political subdivisions other than public edicts, are copyrightable: “State and local governments may and often do claim copyright in their publications. It is their prerogative to set policies that may allow, require, restrict or prohibit claim of copyright on some or all works produced by their government units.” See http://www.cendi.gov/publications/04-8copyright.html#313. State law will determine whether or not a publicly owned airport can acquire and hold a copyright in its GIS data. For a sampling of state laws relating to public ownership of copyrights, see https://en.wikipedia.org/ wiki/Copyright_status_of_work_by_U.S._subnational_governments.

40 | LEVERAGING NEXTGEN SPATIAL DATA TO BENEFIT AIRPORTS 15 “Legal Issues in the Use of Geospatial Data and Tools for Agriculture and Natural Resource Man- agement, A Primer,” Longhorn, Herson-Apollonio, and White, ISBN: 970-648-094-3 (2002), p. 21, available online at http://www.cgiar-csi.org/wp-content/uploads/2012/10/CSI-2002-IPR- Primer-full.pdf. 16 Slip Op., http://www.supremecourt.gov/opinions/13pdf/13-298_7lh8.pdf. As a result of the confusion generated by the Alice decision, the U.S. Patent and Trademark Office in February 2015 issued extensive guidance on subject matter eligibility. See http://www.uspto.gov/patent/ laws-and-regulations/examination-policy/2014-interim-guidance-subject-matter-eligibility-0. 17 For a comprehensive review of the history of statutory and common law of copyright protection as it applies to databases, see the U.S. Copyright Office Report on Legal Protection of Databases, August 1997, available online at http://www.copyright.gov/reports/dbase.html. 18 “A Thoughtful and Practical Analysis of Database Protection Under Copyright Law, and a Critique of Sui Generis Protection,” Wesley L. Austin, Journal of Technology Law and Policy, Vol. 3, Issue 1 (1997), available online at http://jtlp.org/vol3/issue1/austin.html#ENI. 19 For a comprehensive review of copyright and other tools for protecting intellectual property as- sociated with GIS data, op. cit., note 4 infra, Longhorn, Herson-Apollonio, and White, ISBN: 970- 648-094-3 (2002), available online at http://www.cgiar-csi.org/wp-content/uploads/2012/10/ CSI-2002-IPR-Primer-full.pdf. 20 Ibid., p. 30. 21 Ibid. p. 18. See, e.g., “Watermarking GIS Data for Digital Map Copyright Protection,” Tao, Dehe, Chengming, and Jianguo, available online at http://icaci.org/files/documents/ICC_proceedings/ ICC2009/html/nonref/16_4.pdf. For a contrary view, see http://www.georeference.org/doc/ public_access_to_public_data.htm. 22 A Guide to Airport Surveys, FAA, p.19, available online at https://airports-gis.faa.gov/public/data/ Airport_Survey_White_Paper.pdf. 23 See 5 U.S.C. 552(b) for FOIA exemption categories, available online at https://www.law.cornell. edu/uscode/text/5/552. Refer to the U.S. Department of Justice Guide to the Freedom of Infor- mation Act, available online at http://www.justice.gov/oip/doj-guide-freedom-information-act, for comprehensive information on FOIA, exemptions from FOIA, and judicial and agency inter- pretations of FOIA and exemptions. 24 For a comprehensive and definitive analysis of what data qualifies for this exemption, see the De- partment of Justice Guide, Exemption 4, available online at http://www.justice.gov/sites/default/ files/oip/legacy/2014/07/23/exemption4_0.pdf. 25 See, e.g., the Virginia Guide to Handling FOIA Requests for GIS Data (2014), available online at http://foiacouncil.dls.virginia.gov/ref/GIS_Records.pdf/. 26 See, e.g., Phillips, Information Liability: The Possible Chilling Effect of Tort Claims Against Producers of Geographic Information Systems Data, 26 Florida State University Law Review 743 (1999). 27 See Saloomey v. Jeppeson and Company, 707 F.2d 671 (2d Cir. 1983); Aetna Casualty & Surety Co. v. Jeppesen & Co., 642 F.2d 339, 342-43 (9th Cir.1981); and Fluor Corp. v. Jeppesen & Co., 170 Cal.App.3d 468, 475, 216 Cal.Rptr. 68, 71 (1985) for some examples of aeronautical charting cases.

Financial and Legal Considerations of Spatial Data | 41 28 In Birmingham v. Fodor’s Travel Publications, Inc., 833 P.2d 70 (1992), the court decided that a travel publication was not like an aeronautical chart and that the publisher was not liable for failing to warn readers of dangerous surf. In Winter v. G.P. Putnam’s Sons, 938 F.2d 1033 (9th Cir. 1991), the court decided that the publisher of a book about mushrooms could not be held liable even if errors in the book caused people to get sick from eating bad mushrooms. The court explained, at 1036, that such publications are not similar to aeronautical charts because aeronautical charts are highly technical tools. They are graphic depictions of technical, mechani- cal data. The best analogy to an aeronautical chart is a compass. Both may be used to guide an individual who is engaged in an activity requiring certain knowledge of natural features. Com- puter software that fails to yield the result for which it was designed may be another. In contrast, The Encyclopedia of Mushrooms is like a book on how to use a compass or an aeronautical chart. The chart itself is like a physical “product” while the “How to Use” book is pure thought and expression. 29 See https://en.wikipedia.org/wiki/Third-party_beneficiary. 30 In Brocklesby v. United States, 767 F.2d 1288 (9th Cir. 1985), cert. denied, 474 U.S. 1101 (1986), a World Airways plane crashed in Alaska and several people were killed. The airline and the widows sued the government, which had developed the instrument approach procedure on which the pilots had relied, and Jeppesen, the company that produced the chart that depicted this procedure. The airline and the widows sued under the theories of strict liability (discussed below) and negligence. The court found that Jeppesen was negligent for failing to adequately test the data that had been supplied to it by the government and to adequately warn pilots that there might be errors in the data. The court stated, in footnote 12, that the “manufacturer of a potentially hazardous product has a duty to conduct reasonable tests and inspections to detect latent defects” and that the “failure of the manufacturer to warn consumers of defects of which the manufacturer is or should be aware constitutes negligence.” The court acknowledged that if Jeppesen had merely republished the data in the form that the government had given it, it would not be held liable. But in this case the court stated that Jeppesen had converted a govern- ment procedure from text into graphic form and had represented that the chart contained all necessary information. 31 For example, in Reminga v. United States, 631 F.2d 449 (6th Cir. 1980), a pilot and his passen- gers were killed when their small plane struck a guy wire that supported a tall television tower. It was undisputed that the location of the TV tower was not shown accurately on the aeronautical chart that the pilot was using. The widows of the pilots argued that the government should be held liable for the deaths of their husbands because the government was negligent for publish- ing a chart that showed the TV tower in the wrong location. The government argued that the pilots were contributorily negligent for flying so low and in bad weather. The court recognized that there was evidence from which a finding of contributory negligence might have been made but ultimately found the evidence to the contrary more persuasive. Therefore, it concluded that the failure to show the location of the tower accurately on the chart rendered the United States liable for injury to those who relied upon the chart. 32 For example, in Brocklesby v. United States, described infra note 30 involving the World Airways crash in Alaska, the airline and widows sued under the theories of strict liability in addition to negligence. Under strict liability, they alleged that the Jeppesen chart was a product in a defec- tive condition unreasonably dangerous to the pilots who relied on it. Jeppesen countered that the instrument approach procedure depicted in the chart was not a “product” and that the errors in the chart were the result of faulty information given to Jeppesen by the government and not the fault of Jeppesen. But the court determined that even though the approach pro- cedure was not a product, the chart on which the procedure was depicted was a product and

42 | LEVERAGING NEXTGEN SPATIAL DATA TO BENEFIT AIRPORTS the fact that the defect in the product was not the fault of Jeppesen was irrelevant. Under strict liability, injured parties need only show that the product was defective, not where fault for the defect lies. The court suggested that if Jeppesen believed the defect was the government’s fault, it should seek indemnification from the government but could not avoid paying damages to the airline and the widows. 33 So one could not avoid liability simply by stating that the bad data was received from someone else. 34 Smith v. Linn, 48 Pa. D. & C.3d 339, 357 (Pa.Com.pl. 1988). 35 Capitol Reproduction, Inc., v. Hartford Insurance Company, 800 F.2d 617 (6th Cir. 1986). [An inac- curate aerial survey resulted in economic damages.] 36 See Seay Law International, ACRP Legal Research Digest 24: Sovereign Immunity for Public Airport Operations (2015), for guidance on this analysis. 37 Op cit., fn. 7. 38 See, e.g., De Bardeleben Marine Corp. v. United States, 451 F.2d 140, 149 (5th Cir. 1971) (stating that the government was not liable when it complied with statutes regulating updates to naviga- tional charts).