Our goal is a free, fair, and open web!

Indexing public data under an implied license.

One main issue we are fighting for is the fact that public data is a public resource. Part of this is centered around the "implied license doctrine". When you're publishing public content, in a public space, you should not be surprised when people use your data and build new, compelling, and new and innovative applications.

In 2008, Orit Fischman Afori, argued for the implied license doctrine in paper entitled Implied License: An Emerging New Standard In Copyright Law submitted to the conference on Innovation and Communications Law.

This article addresses a proposed new standard in copyright law–the “implied license” doctrine–which has the potential to play a prominent role in copyright conflicts, especially in the context of digital media. The implied license doctrine is not new to intellectual property law but its use is currently limited. It is viewed essentially as a ramification of contract law, and as such the doctrine is usually applied to fill gaps in existing contractual or quasi-contractual relations as a means of identifying the subjective or even objective intent of the relevant parties. This article proposes a new conceptualization of the implied license doctrine, one that would enable courts to impose norms based on public policy considerations in order to bring reasonableness into the law of copyright, as it affects digital media, especially in the Internet. This standard of an implicit license should, in this view, override the intent of the relevant parties, even if explicitly stated, and would thus introduce clear and binding rules of conduct. In this sense, “implied license” is used metaphorically, since it is removed from the realm of contract law and is used in some cases as a means of bypassing actual contractual provisions.

Some relevant quotes from her paper follow:

Thus, open standard norms are embedded in copyright law, transferring the final crystallization of the law to courts, which then develop law on a case- by-case basis. The most familiar example of such a mechanism is the “fair use” doctrine although as case law has demonstrated, this doctrine is fact-specific and often unpredictable.

The current frontier in copyright cases involves the legality of different Internet practices, such as linking and framing, the operation of search engines, and the sale of works through transmission of their digital copy.

In such cases, the traditional implied license doctrine does not apply where there is no agreement between the parties, or worse, when the copyright holder explicitly refuses to permit the reproduction or other dissemination of his or her work.

Such application would result in a deemed implicit consent on the part of the copyright owner in appropriate circumstances, even in the face of explicit statements to the contrary.

For example, a statement on a website requesting that the site not be linked or have its content scanned by search engines would be overridden by an implied license to link or search. This conclusion could reasonably be reached by a court under a more nuanced version of the implied license doctrine, from the mere conduct of the owner of the copyrighted material in posting his or her work online.

In order to avoid infringing the patent owner’s rights, a consumer buying medication at the pharmacy should theoretically be required to simultaneously purchase a license permitting the use of the medication. This is an absurd outcome. This is where the implied license doctrine comes to the rescue and infuses reasonableness into patent law.

The legal reasoning is that the patent owner is deemed implicitly to have allowed such use through the mere act of selling the good which incorporates the patented invention. This long-standing rule is known as the “patent exhaustion” theory, since the patent owner has exhausted his control over his patented product by authorizing its sale.

According to the proposed mechanism of the implied license doctrine, the doctrine could function as a general rule permitting beneficial new online activities and practices. Nevertheless, since permission would be granted on a case-by-case basis, the general rule favoring those practices could be limited in appropriate circumstances. The basic philosophy underlying the proposed implied license doctrine is that a copyright owner that includes his works online is deemed to have accepted online rules of conduct, despite any contrary assertion, and such rules are based on policy considerations acknowledging the essence of online dissemination of information. Such policy considerations are also intended to increase reasonability in reconciling copyright conflicts in digital contexts. Thus the implied license doctrine could function alongside the fair use doctrine, arming courts with a mechanism for further adapting copyright law to reality.