licenses and licensing

Licenses and Licensing

Kevin PomfretCentre for Spatial Law and Policy

Why Issue is Important?

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

Issue Impacts Everyone that Touches Data

Data ProvidersAggregatorsEnd UsersSoftware CompaniesCloud Providers

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

Licenses

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

:

Intellectual Property Rights:Copyright

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?

:





Licenses

i.e. Twitter Maps

7

Never Know How Data Will Be Used

Failure to Address Increases Risks

Risk Goes Two Ways:

1. Risk of Harm to other party or to third party

Liability

2. Risk of Harm to You

Damages

Define Market(s)

Define Product(s)

Define Derived Product(s)

Define Region(s)

And Limits Revenue Opportunities





Licenses

Cash◦ Immediate◦ Over-time ◦ Royalty

Currency? In-kind

◦ Services◦ Data◦ Reciprocal Obligations

Payment





Licenses

Who is Responsible When Someone/Something is Injured?

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?

St Peter’s Square - 2005

14

Perceptions of Privacy are Changing

Luca Bruno/AP

St Peter’s Square 2013

15

Creating a Location Privacy Paradox

Michael Sohn/AP

Privacy“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

Privacy Will Become Even Bigger Issue with New Technology

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

18

Privacy Law Is Evolving

Legislation

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. “


◦ Representations and Warranties; Covenants, Indemnifiation



Licenses

Law Is Still Tied to Territory

Miscellaneous Provisions

Which jurisdiction’s laws apply?

Where will proceedings take place?

Arbitration? Mediation?

Force Majeure

Assignment

Compliance with Laws

Insurance

Kevin D. Pomfret, Esq. [email protected]

804.928.5870 @kpomfret

Questions