(Disclaimer: I am not a lawyer, and none of this is intended to be legal advice. I do, nevertheless, consider myself to be an informed layman - and offer this analysis as a starting point for research into the legal status of GIS data in New York, with citations to relevant law, court cases, and commentaries from both sides of some of the controversies. I do not purport it to be an unbiased analysis; as and OSM contributor and otherwise as an ‘open sourcerer’, I have strong personal opinions regarding the purported ownership of factual information. I nevertheless attempt to present the law as it stands, even if I sometimes make the Dickensian observation that “the law is an ass.”)

What’s up with GIS data in New York?

GIS data originating from government agencies have, for about twenty years, been subject to considerably uncertainty and risk. This largely stems from the fact that in many jurisdictions, the mantra that “government should be run like a business” has led to expectations that state and local GIS departments should support themselves on user fees, rather than from the general fund. The most lucrative source of these fees has been the “multiple listing services” used by real estate agents to exchange data about houses on the market. These services often pay handsomely, far in excess of the cost of reproduction, for the maps of tax parcels. These provide the agents with the boundaries of properties listed for sale.

It is worth noting that in this discussion, I refer to State and local data. It has always been held that works prepared for the US Government by a government employee engaged in the performance of official duties are in the public domain. Works produced by contractors, depending on the terms of the contract, may be protected by copyright. Ordinarily, in this case, the copyright holder will be identified prominently. Those who use public data promulgated by a Federal agency have little to fear.

With the advent of broad use of the Internet in the 1990’s, more and more GIS data belonging to the States have been exchanged in digital form. This exchange has meant that the cost of reproduction has fallen to nearly nil, and the sale of such data is openly meant to defray the cost of the original work. The courts have had a mixed reaction to this, and the way that it tends to come into apparent conflict with the Freedom of Information laws passed in the various states.

For data belonging to the counties, New York State endures a particularly murky legal situation. In particular, Suffolk County was a bellwether in attempting cost recovery for its production of the tax maps.

The Suffolk County case - origins

In 1971, the county separated its Real Property Tax Servicce Agency from its Department of Public Works, and provided a USD2.8 million initial funding resource in the form of a cost transfer from Public Works for the preparation of the tax maps. At the time, the maps were drawn by skilled drafters in pen and ink on plastic film. In 1974, the first edition of the tax maps was completed, and the county filed for copyright registration on the maps.note-1 Upon securing the copyright, the county commenced negotiatons with Real Estate Data, Inc. (REDI) to reproduce the maps in paper form and market them to the general public. The eventual agreement resulted in a USD25,000 annual payment from REDI to the county, an additional payment of 5% of REDI’s gross sales, and a promninent display of Suffolk County’s copyright notice in every edition of the maps.

In the early 1980’s, REDI changed corporate control several times. As a result, the court papers variously refer to REDI, Information Systems and Services, Inc., Thomson-Ramo-Wooldridge (TRW), Experian Data Services, First American Real Estate Solutions, and possibly others. (Astute readers will note that several of these names are associated with one of the ‘big three’ US credit-reporting bureaux. The corporation was unsympathetic defendant even at the time of the court case discussed here.) After one of its changes of control, the agreement allowing it to copy and distribute tax maps was abrogated or allowed to lapse. The specifics are unclear, but all parties substantially agreed that no agreement was in force by the mid-1980’s.

With no agreement in force, REDI continued to sell copies of the maps, but no longer received updated information from the county. The county was concerned both about the loss of revenue and the complaints that it received about obsolete maps, and in 1999, filed suit against Experian for declaratory and injunctive relief, and for monetary damages for copyright infringement. The cited article note-2 details a timeline of the case.

The Suffolk County case - the defense

Experian offered no argument, at least in the initial proceedings, that it had not made and distributed copies of the tax maps. Instead, it moved to dismiss the case, on the theory that as a matter of both public policy and law, the county could not own a copyright on the maps. The US District Court for the Southern District of New York disagreed, and ruled that nothing in US copyright law forbade a State or local government, as opposed to the Federal government, from registering, owning and prosecuting a copyright.

Experian moved for reconsideration, and presented the argument that, while Federal law might not forbid a State from enforcing a copyright in its documents, New York’s Freedom of Information Law (FOIL) did forbid it. It cited advisory opinions offered by the New York State Committee on Open Government note-3 (and the court cases referenced therein) that argued that failing to disclose the tax maps or requiring contracts restricting their public redistribution ran against the FOIL. Upon analysis, the court agreed, and dismissed the county’s case. The county appealed.

The Suffolk County case - the decision

The Second Circuit court of appeals decided the case, issuing its opinion on 25 July 2001. note-4

Since the ruling was on a motion to dismiss, there was no finding of fact. All of the court’s opinions are on matters of law.

The defendant’s first argument was that the county had failed to state a claim. As the court observed, “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims” - construing all the facts in the light most favorable to the claimant.

The court found that the Copyright Act of 1909 had no restriction on state’s asserting copyright over their works for hire. (For example, a state or local government, could commission a piece of public art, and retain copyright over it if it was contracted under a work-for-hire agreement.) The tax maps could be “original works of authorship” and protectable under copyright.

Copyright law requires that copyright be claimed over an “original work of authorship.” Bare facts that do not originate with the author of the work do not qualify, and the “sweat of the brow” in compiling them does not by itself imbue them with originality. Rather, a work is copyrightable only if “it possesses at least some minimal degree of creativity.” note-5 First American had argued that the tax maps contained no original protectible elements, and in the alternative, argued that any original elements were not subject to copyright protection befcause they were dictated by state law and regulations. Suffolk had responded that “tax maps contain a substantial amount of original material, research, compilation and organization wholly original with the plaintiff.”

The court found that it needed to focus 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.” (What this focus means in the context of GIS data is surely not clear to me!) It found that Suffolk’s allegation was sufficient to present a question of fact for a jury to decide. Alas, its phrasing was atrocious: “The District Court thus correctly found that Suffolk County has sufficiently alleged that its work is protected.” (More on this later!)

The defense had also presented the argument that New York’s FOIL abrogated Suffolk’s copyright, The State also intervened as amicus curiae, asserting its interest in the open sharing of the maps. In a lengthy argument, the Court concuded that the statutory language of FOIL was in fact silent as to the operation of coyprights. It further concluded that the advisory opinion of the Committee on Open Government should be accorded no deference, since it was advising on the operation of Federal copyright law (over which the Committee had no advisory power) and not on the State’s FOIL (which had already been dispensed with as being silent on copyrights).

Finally, the defense had argued that the tax maps were in the Public Domain from their inception. They are edicts of government, the defense argued, by analogy to legislative statutes and judicial opinions. The court found that the determination turns on two considerations: whether the entity that created a work needs an economic incentive to create or has a proprietary interest in creating the work, and whether the public needs to have notice of a particular work in order to have notice of the law. The court found the first consideration to be a matter for the trier of fact - the county was, at the very least, entitled to present evidence that the economic incentive of copyright was necessary for the maps’ creation. The court found the ‘fair notice’ concern to be irrelevant, since any individual required to pay property tax surely had access to both the law and the relevant map.

What was left, therefore for the District Court to decide was the the extent to which the tax maps were original (rather than compilations of fact with decisions guided strictly by regulation), and, should they be found to be original, the extent to which the economic incentive of copyright was needed as an incentive for their creation. It remanded the case to the District Court for further proceedings consistent with the opinion.

Following this judgment, the parties settled. As far as I know, the settlement terms were undisclosed. (If that is the case, an argument could be advanced that the failure to disclose them could itself be a violation of FOIL.)

The aftermath of Suffolk County

The state government has continued to assert that Suffolk County’s position is inconsistent with the Freedom of Information Law and the Federal copyright law, correctly pointing out that certain relevant facts were never determined by the lower court:

On appeal, the Second Circuit Court of Appeals held that in general, New York State, local government, and Suffolk County may claim a copyright protection under the Copyright Act. In contrast to the Federal Government, which is prohibited from obtaining copyright protection for its works (17 USC §105), the Second Circuit found that “the Copyright Act is silent as to the rights of states or their subdivisions” and that “[b]y specifying a limitation on ownership solely against the federal government, the Copyright Act implies that states and their subdivisions are not excluded from protection under the Act.” County of Suffolk v. First American Real Estate, 261 F.3d 179, 187 (2nd Cir. 2001).*

Due to insufficient evidence, however, the Second Circuit remanded the matter concerning whether the maps were sufficiently original and creative to qualify for copyright protection, or whether the content and the form of the maps were dictated by state law and regulation and thus not subject to copyright protection. Further, the Second Circuit opined, it would be for the District Court to determine whether the tax maps were in the public domain from inception, and thus outside the coverage of the Copyright Act. To make this determination, the District Court would have to consider, most importantly, whether the County needed the economic incentive of the Copyright Act to create the maps, or whether it had adequate incentives or obligations to produce their respective materials.

The Committee further went on to advise:

Conditioning the release of copies on contractual agreements governing future treatment of the copies, in our opinion, would thwart the very purpose and intent of the Freedom of Information Law. It is our belief that when materials are accessible under the Freedom of Information Law, upon receipt of the appropriate fee, they must be released to the applicant without restriction. Accordingly, in keeping with the Second Circuit decision in County of Suffolk, we advise that it is permissible for the County to notify the applicant that the materials may be subject to copyright protection, but that the County cannot condition access on a contractual obligation pertaining to redisclosure of records accessible to any member of the public.

and the opinion also addresses the fact that it is impermissible to use reproduction fees to cover anything but the cost of reproduction:

… although compliance with the Freedom of Information Law involves the use of public employees’ time, the Court of Appeals has found that the Law is not intended to be given effect”on a cost-accounting basis”, but rather that “Meeting the public’s legitimate right of access to information concerning government is fulfillment of a governmental obligation, not the gift of, or waste of, public funds” [Doolan v. BOCES, 48 NY 2d 341, 347 (1979)]. note-6

It has continued to issue advisory opinions of a similar nature as recently as 2015. note-7

Nevertheless, much of the press had taken the Suffolk County decision as a statement from the Second Circuit that tax maps are protected by copyright (a decision that it never reached). In fact, I vaguely recall a case from about a decade ago (to which I have mislaid the citation) in which New York City asserted similar claims against a copyright defendant, and the lower court took as given the misreading that tax maps are protected by copyright, finding the defendant liable on the pleadings, since the fact of copying was uncontested. (The case was mooted before an appeal could make its way through the system by the passage of New York City’s Open Data Law note-8).

Most New York counties, in this legal situation, continue jealously to guard their cadastral data in the hopes someday of securing significant cost recovery through licensing revenue.

What does all this mean for OSM’s use of New York Government data?

Despite all the legal turmoil, the prospect for using New York government data in OSM is actually fairly bright.

Data produced by and for the New York State government and listed in the gis.ny.gov data catalogue are pretty much fair game. The state government has consistently held for more than two decades that its data are public (with certain narrow statutory exemptions related to confidentiality and homeland security) and that they are free to all comers. Occasionally, the agency that produced an specific data set will request acknowledgment as a courtesy, and we can certainly satisfy that request on the Contributors page.

New York City’s data are also fair game, owing to the sweeping scope of its Open Data Law, which also leaves little room for the city to escape its obligation to make its operational data open and free to share.

Cadastral data, and data in general from the individual counties apart from New York City, is a mixed bag. The state has requested that the counties make parcel data available, but the response from the counties has been slow. As of this writing, 21 counties have resolved to make their tax parcel data public.

In addition, New York State has asserted that it has an unquestioned right to publish data about the parcels that it owns in allodium. (New York is the sovereign; it cannot own parcels in ‘fee simple’ since there is no superior title to which it answers.) It therefore publishes state-owned parcel data for all 61 counties.

I had previously had reservations about the legality of importing New York’s address point data because the address points were supplied by the counties, and in many cases were derived from parcel centroids. (If the parcel boundaries, devoid of other metadata, are the subject of copyright, why not their centroids?) I therefore counseled that people should proceed with caution in the forty counties that have not agreed to share their parcel data. My fears have been dispelled by a recent e-mail sent by Frank Winters to an OSM contributor, confirming that the data may be used without restriction or license for any lawful purpose. We can safely presume that the state government would not offer rights that are not theirs to give.

We should, as a project, retain a copy of Mr Winters’s e-mail including metadata, against any future inquiries regarding the data from gis.ny.gov. What is a proper repository for this messsage?

Given the legal uncertainty, extreme caution is still needed for county and municipal data outside New York City that have not been blessed by NYSGIS!

A final remark

People searching OSM contributions for my user name (ke9tv) will find the occasional parcel of public land in which I cite ‘XXX county tax rolls’. In all such cases, either the given county is one of the 21 that have given permission, or the tax rolls were used as one of multiple data sources in an effort to resolve boundary inconsistencies. In all cases where the tax rolls were consulted, the parcels were redrawn before uploading and there will be at least hairline differences between OSM’s copy and the county’s. Nothing remains of any artistic decisions made by the person who produced the original map. Nor does anything remain of the selection, sequence and arrangement of the data, since only individual parcels were extracted and any selection was mine alone. Since US law recognizes no copyright on the bare facts, I believe myself to be on an entirely firm legal footing.

Notes

note-1. note-2. Most of the factual account of the prosecution history of the case derives from Penny Wells LaValle, Tax Maps and the Legend of the Dragon Slayer. _Geographic Information Systems Technology News 3:_2 (Fall/Winter 2001).

note-3. The New York State Committee on Open Government has a name that sounds as if it might be an NGO, but it is in fact an agency of the Department of State responsible for overseeing and advising the government, the public and the media regarding New York’s Freedom of Information, Open Meetings, and Personal Privacy Protection Laws.

While its opinions are advisory in nature, the Executive Branch offers them extreme deference (partly because most members are members of the administration; the Lieutenant Governor, the Secretary of State, the Director of the Divison of Budget and the Commissioner of the Office of General Services serve ex officio; four more members are appointed by the Governor, while one member is appointed by each house of the State Legislature). The opinions may be presumed, absent evidence to the contrary, to be the official policy of the State.

County and local governments, as we see here, are more inclined to reject the Committee’s advice and challenge it in court, as we see here.

Relevant opinions presented to the District Court in relation to the Suffolk County case include:

• Robert J. Freeman, Executive Director, New York State Committee on Open Government, letter to Kenneth W. Lovett, President, Virtual Information Systems, Inc., 5 January 1993 FOIL-AO-f7507. (opining that the contents of a GIS system are “statistical or factual tabulations of data” and thus not exempt from FOIL)

• Robert J. Freeman, Executive Director, New York State Committee on Open Government, letter to Kenneth W. Lovett, President, Virtual Information Systems, Inc., 7 May 1997. FOIL-AO-f10072 (specifically opining that Suffolk County’s practice of charging a reproduction fee of USD4.00 per map was both in excess of the cost of reproduction and inconsistent with the FOIL, and moreover advising that the county could not skirt the issue by invoking the “unless a different fee was established by law” exception, since a mere committee of the county legislature did not have the power under statute to impose such a fee.)

• Robert J. Freeman, Executive Director, New York State Committee on Open Government, letter to Robert N. Brower (Cayuga County Planning Board), 29 December 1998 FOIL-AO-f11230. (advising that the FOIL may require transmission of computer records in machine-readable form, while not requiring that new software be developed or new data entry conducted to produce such records, and urging that the Legislature consider adding language to the FOIL to require that computer databases be designed to provide easy redaction of private or security-sensitive information, so that FOIL requests can be answered without reprogramming.)

note-4 County of Suffolk, New York, v. TRW. 261 F.3d 179 (2001).

note-5 Feist Publ’ns, Inc. v. Rural Tel. Serv., Co., 499 U.S. 340 (1991)

note-6 Camille S. Jobin-Davis, Assistant Director, New York State Committee on Open Government, letter to [redacted recipient], December 19, 2005 FOIL-AO-15695

note-7 Robert Freeman, Executive Director, New York State Committee on Open Government, e-mail to [redacted], 6 February 2015 FOIL-AO-19246

note-8 New York City Local Law 11 of 2012.

note-9 Frank Winters (Geographic Information Officer, New York State Office of Information Technology Services), e-mail to Skyler Hawthorne, 17 July 2021, copy (with metadata) mirrored at https://kbk.is-a-geek.net/attachments/20200719/winters_20200717.txt