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April 29, 2010, noon

When public records are less than public: How governments try to use copyright to limit access to data

[Given how important data — in particular government data — will be to the future of journalism, I wanted to reprint this piece from Helen Fu at the Citizen Media Law Project, down the street from us here at Harvard. Helen writes about the state of current law on how state and local governments can use copyright and other means to restrict access to what journalists would argue is public data. —Josh]

In March, Google launched its Public Data Explorer, expanding upon its public data search feature that’s been around since last spring. Earlier this month, Columbia’s Graduate School of Journalism announced a joint degree program to train tech-savvy journalists. It looks like computer assisted reporting is finally going mainstream and moving past its “hacker journalist” label and identity crisis.

That’s all well and good, but having all those programmer journalists looking for access to public data brings to the forefront questions about who owns public records and who has the right to put limits on their use. Oklahoma, for instance, brought in $65 million in the last five years from selling data, and the state legislature has proposed a law to limit the availability of data for such public records requests. Journalists can run into frustrations when data they’re relying upon become unavailable. Sometimes the data feeds are taken down because repeated requests become too burdensome for the public agency, which is what Crimespotting in Oakland encountered before they worked it out with the Oakland Police Department. The public agency may also put limits on how the data are used, or require a licensing fee. Another potential hurdle is a dispute over who owns the data, particularly when a third party supplies the government entity with the data.

While Section 105 of the Copyright Act makes works of the federal government ineligible for copyright protection, this provision does not apply to state and local governments. Nevertheless, there are strong reasons to doubt that copyright protection extends to much state and local government-generated data; lack of originality being the most obvious obstacle (see below). Moreover, because many states have public records laws that require disclosure of public records, the interplay between copyright law and state FOIA-like provisions vary from state to state.

In New York, for instance, state and local agencies may comply with their obligations under the state Freedom of Information Law while maintaining their copyright, and the public records law “does not prohibit a state agency from placing restrictions on how a record, if it were copyrighted, could be subsequently distributed.” County of Suffolk v. First American Real Estate Solutions, 261 F.3d 179, 192 (2d Cir. 2001).

South Carolina takes a similar stance in allowing local governments to obtain copyrights on records “to the extent it can be shown that it contains original material, research, and creative compilation.” Seago v. Horry County, 663 S.E.2d 38, 43 (S.C. 2008). Further, “the purpose of [state] FOIA is satisfied once the public information is provided. It does not violate FOIA for a public entity to copyright specially-created digital data and to restrict subsequent commercial use as long as the information provided is provided initially to the requesting person or entity.” Id.

On the other hand, Florida’s public records law “overrides a governmental agency’s ability to claim a copyright in its work unless the legislature has expressly authorized a public records exemption.” Microdecisions, Inc. v. Skinner, 889 So. 2d 871, 876 (Fla. Dist. Ct. App. 2004). California similarly requires “unrestricted disclosure” to promote the public records statute’s purpose of “increasing freedom of information by giving members of the public access to information in the possession of public agencies,” in ruling that “end user restrictions are incompatible with the purposes and operation of the CPRA.” County of Santa Clara v. Cal. First Amendment Coal., 89 Cal. Rptr. 3d 374, 399 (Cal. Ct. App. 2009).

Of course, even when a government entity claims copyright over public data, that protection is at best thin. In general, datasets are protectable as compilations, meaning only the original selection, coordination, or arrangement of facts is protected. Feist Pubs., Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361-62 (1991). Individual data points are protectable only if they contain predictions and require judgment and discretion, and are not simply “pre-existing facts that had merely been discovered.” CCC Info. Servs., Inc.v. Maclean Hunter Mkt. Reports, Inc., 44 F.3d 61, 67 (2d Cir. 1994); CDN Inc. v. Kapes, 197 F.3d 1256, 1261 (9th Cir. 1999). Thus, to the extent that public records are “independent creations” that have been “selected, weighed and arranged,” data within public and private databases are protected by copyright. Health Grades, Inc. v. Robert Wood Johnson Univ. Hosp., Inc., 634 F. Supp. 2d 1226, 1234 (D. Colo. 2009). In contrast, “merely mechanical derivations” are not eligible for copyright protection. RBC Nice Bearings, Inc. v. Peer Bearing Co., 676 F. Supp. 2d 9, 22-23 (D. Conn. 2009).

Even if the data are not protected by copyright, state contract law may limit the permissible uses of the data. See ProCD Inc. v. Zeidenberg, 86 F.3d 1447, 1455 (7th Cir. 1996) (federal copyright law does not preempt state-law contract claims). In the case where a third party provides the government with information under a contract, the government agency may not be free to let you do anything you want with it. In addition, these contracts, if poorly written, can introduce uncertainty over who owns the rights to electronically distribute the data.

For instance, Routsey is a popular iPhone app that uses prediction data from GPS transponders placed on Muni and BART buses and trains to predict the arrival of the next bus or train. The data was available, for free, in stations, bus shelters, and online. Trouble was, a third party claimed that it had distribution rights to the data and demanded licensing fees for Routsey’s use of it in an iPhone application. The uncertainty over ownership of data was enough for Apple to kill the app, even though San Francisco Municipal Transit Authority claimed ownership over the data and wanted to encourage its use. In the end, with the help of a lawyer, Routsey is back in the iPhone App Store.

Image by opensource.com used under a Creative Commons license.

POSTED     April 29, 2010, noon
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