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Licenses and Licensing
This document discusses key legal issues to consider when developing agreements for geospatial data and services. It identifies five main areas to address: 1) intellectual property rights, 2) use rights, 3) payment terms, 4) risk allocation through representations, warranties and indemnification, and 5) applicable law. It notes that geospatial data can come from various sources, each with their own licensing terms, and that compilations of facts can be copyrighted. Real-time critical applications increase liability risks. The document also discusses privacy and surveillance issues around location data collection.
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Licenses and Licensing
- 1. Kevin Pomfret Centre forSpatial Law and Policy
- 2. Geospatial Products and Servicesare 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 SoftwareCompanies Cloud Providers
- 4. 1. Definerights 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. Definerights 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. TwitterMaps 7
- 8. Risk Goes TwoWays: 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. Definerights 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. Definerights 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 isused 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’sSquare - 2005 1 4Luca Bruno/AP
- 15. St Peter’sSquare 2013 1 5Michael Sohn/AP
- 16. “The settlement also requiresthe 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.
- 18. Previously courtsheld 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 Actof 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. Definerights 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 StillTied 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