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Tauberer et al publish best practices for making government data “license-free”

Back in May, we posted about the Obama Administration’s executive order on open government data and cited Govtrack.us‘s Josh Tauberer’s analysis of the Executive Order as missing the mark and being confused — if not downright misleading — about “open licensing.”

Now Tauberer, along with Eric Mill, Jonathan Gray, Ellen Miller, and Joseph Lorenzo Hall — in discussion with others like Gavin Baker, Timothy Vollmer and Puneet Kishor and with endorsements from the Sunlight Foundation and the Center for Democracy & Technology — have written their guidance on how Federal agencies can make their data “license-free.” Their guidance includes language for Federal agencies to affix to their data publications so that they meet the criteria of a “license-free” principle.

The wording of Tauberer et al’s guidance clearly states that government information, including government-published data, clearly falls within the public domain. But what’s even better is that their guidance includes suggested wording a) putting government data in the public domain internationally; and b) having contractors waive copyright and related rights in the work worldwide through the CC0 1.0 Universal public domain dedication.

As I wrote previously, the memorandum was confusing, if not misleading, by asking agencies to implement the “no restrictions” policy using “open licensing.” The term “open licensing” was improper for two reasons:

First, you can’t license what you don’t own. Most federal government data is in the public domain, and this data is born “license-free.” The memorandum should have been clearer by explicitly directing the policy toward data created in the performance of a contract, which is often subject to copyright protection. (h/t Gavin Baker for the concise way to word that.)

Second, “open licensing” does not mean the same thing as “no restrictions.” Almost every standard open license is “some rights reserved,” meaning some privileges are granted but other rights in the work are retained. Copyright protection is precisely how the terms of these licenses are enforced. The GPL’s so-called virality clause and Creative Commons’s attribution licenses rely on the threat of a copyright infringement lawsuit to enforce their requirements for reuse.

If the memorandum really meant “no restrictions” the best way to accomplish that is not through an open license but rather the CC0 public domain dedication, as we’ve used in our guidance.

What’s the bottom line? Our guidance does not say that all government data must be open and license-free, nor do we attempt to say which government data should be open and license-free. We recognize the practicalities of contract work. However we strongly suggest that license-free become the norm, and we are providing tools for agencies to achieve that.

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