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