Presentation given to LocationTech on licensing of geospatial data

1. Kevin Pomfret
Centre for Spatial Law and Policy

2. Geospatial Products and
Services are increasingly
be developed using data
from a variety of sources
• Government
• Industry
• Crowd
Each are subject to their
own licenses/data sharing
agreements with varying
terms/restrictions

3. Data Providers
Aggregators
End Users
Software Companies
Cloud Providers

4.  1. Define rights in Intellectual Property
 2. Define use rights
 3. Set forth payment terms
 4. Allocate risks
◦ Representations and Warranties; Covenants,
Indemnification
◦ Data quality, compliance with laws, injuries to third
parties
 5. Identify applicable law and other technical
legal issues

5. Facts not copyrightable.
“ A compilation of facts,
however may be copyrightable
if the author made choices as to
‘which facts to include, in what
order to place them and how to
arrange the collected data so
that they may be used
effectively by readers’”
Mason v. Montgomery, quoting
Feist Court
Grants Copyright Holder
Exclusive Right to:
- Reproduce
- Create Derivative Works
- Distribute
- Perform
- Display
How do these apply to today’s
geospatial data products and
services?

6.  1. Define rights in Intellectual Property
 2. Define use rights
 3. Set forth payment terms
 4. Allocate risks
◦ Representations and Warranties; Covenants,
Indemnification
◦ Data quality, compliance with laws, injuries to third
parties
 5. Identify applicable law and other technical
legal issues

7.  i.e. Twitter Maps
7

8. Risk Goes Two Ways:
1. Risk of Harm to
other party or to
third party
Liability
2. Risk of Harm to
You
Damages

9.  Define Market(s)
 Define Product(s)
 Define Derived Product(s)
 Define Region(s)

10.  1. Define rights in Intellectual Property
 2. Define use rights
 3. Set forth payment terms
 4. Allocate risks
◦ Representations and Warranties; Covenants,
Indemnification
◦ Data quality, compliance with laws, injuries to third
parties
 5. Identify applicable law and other technical
legal issues

11.  Cash
◦ Immediate
◦ Over-time
◦ Royalty
 Currency?
 In-kind
◦ Services
◦ Data
◦ Reciprocal Obligations

12.  1. Define rights in Intellectual Property
 2. Define use rights
 3. Set forth payment terms
 4. Allocate risks
◦ Representations and Warranties; Covenants,
Indemnification
◦ Data quality, compliance with laws, injuries to third
parties
 5. Identify applicable law and other technical
legal issues

13. As data is used in
more real time
critical decision
making by non-
sophisticated
users the risk of
mistakes
increases.
Do you want
judges, lawyers
and juries to
decide liability?

14.  St Peter’s Square - 2005
1
4Luca Bruno/AP

15.  St Peter’s Square 2013
1
5Michael Sohn/AP

16. “The settlement also
requires the defendants to
provide a just-in-time
disclosure that fully
informs consumers when,
how, and why their
geolocation information is
being collected, used and
shared, and requires
defendants to obtain
consumers’ affirmative
express consent before
doing so.”
Federal Trade Commission
3/14

17. 1
7

18.  Previously courts held that law enforcement could track
suspects in public
 U.S. v. Jones 132 S. Ct. 945 (2012) Supreme Court was asked
to decide whether law enforcement was required to obtain a
warrant before using a tracking device.
◦ Circuits had conflicting rulings
 Court found that the act of placing a device on auto without a
warrant was a violation of suspect’s Fourth Amendment rights
◦ Trespass theory
 Majority of justices appear to believe that tracking itself can
violate Fourth Amendment rights
◦ Mosaic theory – if collect enough information over time you
infringe an individual’s privacy
1
8

19. Location Privacy
Protection Act of 2014
“Requires any company
collecting the location
data of 1,000 or more
devices to post online: the
kinds
of data they collect, how
they share and use it, and
how people can stop the
collection or sharing. “

20.  1. Define rights in Intellectual Property
 2. Define use rights
 3. Set forth payment terms
 4. Allocate risks
◦ Representations and Warranties; Covenants,
Indemnifiation
◦ Data quality, compliance with laws, injuries to third
parties
 5. Identify applicable law and other technical
legal issues

21. Law Is Still Tied to Territory
Which jurisdiction’s laws
apply?
Where will proceedings
take place?
Arbitration? Mediation?
Force Majeure
Assignment
Compliance with Laws
Insurance

22.  Kevin D. Pomfret, Esq.
 kevin@spatiallaw.com
 804.928.5870
 @kpomfret