Which open licence should I choose?

I’ve written about open data a few times recently. And not-so-recently. And there’s been quite a bit of chat about open subsurface benchmarks in the Software Underground recently. As more people consider openly releasing data — or code, or other content — one question comes up fairly often is: Which licence should I choose?

I’ll start at the beginning, and I am not a lawyer, but this is going to be very high level. So do click on the links to read more.

What is copyright?

You automatically own the copyright to anything original that you create. You don’t have to register it, but the thing you made — and it must be a thing, you can’t copyright ideas — must be original. It could be a photo, a song, or a seismic interpretation. Physical measurements with no creative input, such as well logs, are not copyrightable… but a database consisting of such data is (so-called database rights). Your rights are exclusive, worldwide, and last until some years after you die (it varies).

If someone wants to use your work, even if they just found it on the Internet, they must either claim Fair Use, or seek permission from you. Giving permission means granting a licence; it can be as restrictive and arcane as you want.

If you don’t want people bothering you about licences, or if you want to actively encourage people to use and adapt your work, you can preemptively grant an open licence.

What is openness?

Before you start thinking about licences, there are two more big things to learn about:

1. What is open? Not all licences, not even all Creative Commons licences, meet the Open Definition. In brief, this states that “Open data and content can be freely used, modified, and shared by anyone for any purpose” — you can’t restrict people based on their use case or location. So licences that forbid commercial application are not open.

2. What is permissiveness? Once you’ve decided to go open, you need to decide where you stand on permissiveness. Some licences, notably those advocated by the GNU Free Software Movement, compel licensees (users) to preserve the openness of the work in any future redistribution. This ‘viral’ condition is sometimes called copyleft.

In some circles, a near-religious war smoulders on the permissiveness issue. You need to make up your own mind where you stand, or at least understand the issues.

By the way, granting a licence does not mean giving up your rights. In fact, you must own the copyright in order to grant the licence. Many scientists don’t realize we’ve been giving away the copyright in our work for decades, as a (completely unnecessary and made up) condition of publication.

Another source of confusion: open licences are also not the same thing as public domain. Public domain means that the work is free from copyright restrictions. In general though, it cannot be applied to a copyrighted work (though CC0 tries to relinquish copyright where possible). For example, On The Origin of Species is public domain, as is most work produced by the United States government (for example, by the USGS).

One last thing: an often overlooked aspect of licensing is protection for you, the licensor. All common licences include language that indemnifies you from misuse or misinterpretation of your work. So be careful about putting your stuff ‘out there’ with anything other than a standard licence: you may be leaving yourself open to liability issues later.

Open licences

Rather than writing a lot of stuff that’s been written by smarter people than me, I thought I’d draw a diagram to try to explain the differences between some common licences (there are certainly a lot more than the ones I mention here).

Just to re-iterate: there are a lot more licences than the ones mentioned here, these are just examples.

What do I recommend?

For content, my personal belief is that CC-BY most aptly captures the way science works. Scientists 'build on the shoulders of giants' by re-using the work of others with fastidious attribution, usually by citation. Accordingly, the CC-BY protects the licensor, ensures attribution, and that's it. If you prefer copyleft licences, the equivalent licence is CC-BY-SA.

But Creative Commons recommend against using CC licences for source code, so what should you do then?

For code, the permissive licence closest to CC-BY is the MIT/BSD/Apache family of licences, of which only the Apache 2.0 licence offers some specific protections with respect to patents (in particular, it protects licensees from ‘upstream’ patent infringements). The equivalent copyleft licences are the GPL (for applications) and LGPL (for libraries).

For data, I tend to use CC-BY, but there are some specialist data licences (beware, they are poorly named in my opinion: the seemingly ‘vanilla’ ODbL is copyleft; the permissive equivalent is ODC-By).

What about mixed content, like a Jupyter Notebook? You have to be practical; maybe it depends on whether you consider your notebooks to be 'content' or 'source code'. I sometimes put at the bottom of a notebook something like Open source content. Text is CC-BY, code is Apache 2.0 and I think this makes my intent clear.

Tools

There are some tools around to help you make a choice of licence:

• Licence selector for open source software or data.

• Choose a CC Licence for open content (images, text, perhaps data).

• Choose a Licence for open source software.

• TL;DR Legal has plain English summaries of popular software licences.

Last thing

Note that open licences are just one piece of the jigsaw puzzle of reproducible science and reusable content. You also need to think about open and accessible data formats (e.g. CSV not XLS), accessible content (DOIs and open indexes), and documentation.

Although insufficient, open licences are a necessary component though. And while licences can be changed, they cannot be revoked… so it’s worth putting some thought into your choices before you start pushing your content out into the world.

If it seems hard to navigate, do get in touch, we’d be happy to help if and where we can (notwithstadning IANAL). If your situation is at all complicated I recommend seeking professional legal advice — but do go out of your way to find one who understands both the motivation for, and the legal issues around, open licensing.

An update on Volve

Writing about the new almost-open dataset at Groningen yesterday reminded me that things have changed a little on Equinor’s Volve dataset in Norway. Illustrating the principle that there are more ways to get something wrong than to get them right, here’s the situation there.

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In 2018, Equinor generously released a very large dataset from the decommissioned field Volve. The data is undoubtedly cool, but initially it was released with no licence. Later in 2018, a licence was added but it was a non-open licence, CC BY-NC-SA. Then, earlier this year, the licence was changed to a modified CC BY licence. Progress, sort of.

I think CC BY is an awesome licence for open data. But modifying licences is always iffy and in this case the modifications mean that the licence can no longer be called ‘open’, because the restrictions they add are not permitted by the Open Definition. For me, the problematic clauses in the modification are:

• You can’t sell the dataset. This is almost as ambiguous as the previous “non-commercial” clause. What if it’s a small part of a bigger offering that adds massive value, for example as demo data for a software package? Or as one piece in a large data collection? Or as the basis for a large and expensive analysis? Or if it was used to train a commercial neural network?

• The license covers all data in the dataset whether or not it is by law covered by copyright. It's a bit weird that this is tucked away in a footnote, but okay. I don't know how it would work in practice because CC licenses depend on copyright. (The whole point of uncopyrightable content is that you can't own rights in it, nevermind license it.)

It’s easy to say, “It’s fine, that’s not what Equinor meant.” My impression is that the subsurface folks in Equinor have always said, "This is open," and their motivation is pure and good, but then some legal people get involved and so now we have what we have. Equinor is an enormous company with (compared to me) infinite resources and a lot of lawyers. Who knows how their lawyers in a decade will interpret these terms, and my motivations? Can you really guarantee that I won’t be put in an awkward situation, or bankrupted, by a later claim — like some of GSI’s clients were when they decided to get tough on their seismic licenses?

Personally, I’ve decided not to touch Volve until it has a proper open licence that does not carry this risk.

A big new almost-open dataset: Groningen

Open data enthusiasts rejoice! There’s a large new openly licensed subsurface dataset. And it’s almost awesome.

The dataset has been released by Dutch oil and gas operator Nederlandse Aardolie Maatschappij (NAM), which is a 50–50 joint venture between Shell and ExxonMobil. They have operated the giant Groningen gas field since 1963, producing from the Permian Rotliegend Group, a 50 to 225 metre-thick sandstone with excellent reservoir properties. The dataset consists of a static geological model and its various components: data from over [edit: 6000 well logs], a prestack-depth migrated seismic volume, plus seismic horizons, and a large number of interpreted faults. It’s 4.4GB in total — not ginormous.

Induced seismicity

There’s a great deal of public interest in the geology of the area: Groningen has been plagued by induced seismicity for over 30 years. The cause has been identified as subsidence resulting from production, and became enough of a concern that the government took steps to limit production in 2014, and has imposed a plan to shut down the field completely by 2030. There are also pressure maintenance measures in place, as well as a lot of monitoring. However, the earthquakes continue, and have been as large as magnitude 3.6 — a big worry for people living in the area. I assume this issue is one of the major reasons for NAM releasing the data.*

In the map of the Top Rotliegendes (right, from Kortekaas & Jaarsma 2017), the elevation varies from –2442 m (red) to –3926 m. Major faults are shown in blue, along with seismic events of local magnitude 1.3 to 3.6. The Groningen field outline is shown in red.

Can you use the data? Er, maybe.

Anyone can access the data. NAM and Utrecht University, who have published the data, have selected a Creative Commons Attribution 4.0 licence, which is (in my opinion) the best licence to use. And unlike certain other data owners (see below!) they have resisted the temptation to modify the licence and confuse everyone. (It seems like they were tempted though, as the metadata contains the plea, “If you intend on using the model, please let us know […]”, but it’s not a requirement.)

However, the dataset does not meet the Open Definition (see section 1.4). As the owners themselves point out, there’s a rather major flaw in their dataset:

This model can only be used in combination with Petrel software • The model has taken years of expert development. Please use only if you are a skilled Petrel user.

I’ll assume this is a statement of fact, as opposed to a formal licence restriction. It’s clear that requiring (de facto or otherwise) the use of proprietary software (let alone software costing more than USD 100,000!) is not ‘open’ at all. No normal person has access to Petrel, and the annoying thing is that there’s absolutely no reason to make the dataset this inconvenient to use. The obvious format for seismic data is SEG-Y (although there is a ZGY reader out now), and there’s LAS 2 or even DLIS for wireline logs. There are no open standard formats for seismic horizons or formation tops, but some sort of text file would be fine. All of these formats have open source file readers, or can be parsed as text. Admittedly the geomodel is a tricky one; I don’t know about any open formats. [UPDATE: see the note below from EPOS-NL.]

Happily, even if the data owners do nothing, I think this problem will be remedied by the community. Some kind soul with access to Petrel will export the data into open formats, and then this dataset really will be a remarkable addition to the open subsurface data family. Stay tuned for more on this.

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References

NAM (2020). Petrel geological model of the Groningen gas field, the Netherlands. Open access through EPOS-NL. Yoda data publication platform Utrecht University. DOI 10.24416/UU01-1QH0MW.

M Kortekaas & B Jaarsma (2017). Improved definition of faults in the Groningen field using seismic attributes. Netherlands Journal of Geosciences — Geologie en Mijnbouw 96 (5), p 71–85, 2017 DOI 10.1017/njg.2017.24.

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UPDATE on 7 December 2020

* According to Henk Kombrink’s sources, the dataset release is “an initiative from NAM itself, driven primarily by a need from the research community for a model of the field.” Check out Henk’s article about the dataset:

Kombrink, H (2020). Static model giant Groningen field publicly available. Article in Expro News. https://expronews.com/technology/static-model-giant-groningen-field-publicly-available/

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UPDATE 10 December 2020

I got the following information from EPOS-NL:

“EPOS-NL and NAM are happy to see the enthusiasm for this most recent data publication. Petrel is one of the most commonly used software among geologists in both academia and industry, and so provides a useful platform for many users worldwide. For those without a Petrel license, the data publication includes a RESCUE 3d grid data export of the model. RESCUE data can be read by a number of open source software. This information was not yet very clearly provided in the data description, so thanks for pointing this out. Finally, the well log data and seismic data used in the Petrel model are also openly accessible, without having to use Petrel software, on the NLOG website (https://www.nlog.nl/en/data), i.e. the Dutch oil and gas portal. Hope this helps!”

Volve: not open after all

Back in June, Equinor made the bold and exciting decision to release all its data from the decommissioned Volve oil field in the North Sea. Although the intent of the release seemed clear, the dataset did not carry a license of any kind. Since you cannot use unlicensed content without permission, this was a problem. I wrote about this at the time.

To its credit, Equinor listened to the concerns from me and others, and considered its options. Sensibly, it chose an off-the-shelf license. It announced its decision a few days ago, and the dataset now carries a Creative Commons Attribution-NonCommercial-ShareAlike license.

Unfortunately, this license is not ‘open’ by any reasonable definition. The non-commercial stipulation means that a lot of people, perhaps most people, will not be able to legally use the data (which is why non-commercial licenses are not open licenses). And the ShareAlike part means that we’re in for some interesting discussion about what derived products are, because any work based on Volve will have to carry the CC BY-NC-SA license too.

Non-commercial licenses are not open

Here are some of the problems with the non-commercial clause:

• NC licenses are not 'open'. They do not meet the Open Definition, because open data must be available for anyone to use, for any purpose. For example, here’s a quote from Hagedorn et al (2011):

NC licenses come at a high societal cost: they provide a broad protection for the copyright owner, but strongly limit the potential for re-use, collaboration and sharing in ways unexpected by many users

• NC licenses are incompatible with CC-BY-SA. This means that the data cannot be used on Wikipedia, SEG Wiki, or AAPG Wiki, or in any openly licensed work carrying that license.

• NC-licensed data cannot be used commercially. This is obvious, but far-reaching. It means, for example, that nobody can use the data in a course or event for which they charge a fee. It means nobody can use the data as a demo or training data in commercial software. It means nobody can use the data in a book that they sell.

• The boundaries of the license are unclear. It's arguable whether any business can use the data for any purpose at all, because many of the boundaries of the scope have not been tested legally. What about a course run by AAPG or SEG? What about a private university? What about a government, if it stands to realize monetary gain from, say, a land sale? All of these uses would be illiegal, because it’s the use that matters, not the commercial status of the user.

Now, it seems likely, given the language around the release, that Equinor will not sue people for most of these use cases. They may even say this. Goodness knows, we have enough nudge-nudge-wink-wink agreements like that already in the world of subsurface data. But these arrangements just shift the onus onto the end use and, as we’ve seen with GSI, things can change and one day you wake up with lawsuits.

ShareAlike means you must share too

Creative Commons licenses are, as the name suggests, intended for works of creativity. Indeed, the whole concept of copyright, depends on creativity: copyright protects works of creative expression. If there’s no creativity, there’s no basis for copyright. So for example, a gamma-ray log is unlikely to be copyrightable, but seismic data is (follow the GSI link above to find out why). Non-copyrightable works are not covered by Creative Commons licenses.

All of which is just to help explain some of the language in the CC BY-NC-SA license agreement, which you should read. But the key part is in paragraph 4(b):

You may distribute, publicly display, publicly perform, or publicly digitally perform a Derivative Work only under the terms of this License

What’s a ‘derivative work’? It’s anything ‘based upon’ the licensed material, which is pretty vague and therefore all-encompassing. In short, if you use or show Volve data in your work, no matter how non-commercial it is, then you must attach a CC BY-NC-SA license to your work. This is why SA licenses are sometimes called ‘viral’.

By the way, the much-loved F3 and Penobscot datasets also carry the ShareAlike clause, so any work (e.g. a scientific paper) that uses them is open-access and carries the CC BY-SA license, whether the author of that work likes it or not. I’m pretty sure no-one in academic publishing knows this.

By the way again, everything in Wikipedia is CC BY-SA too. Maybe go and check your papers and presentations now :)

What should Equinor do?

My impression is that Equinor is trying to satisfy some business partner or legal edge case, but they are forgetting that they have orders of magnitude more capacity to deal with edge cases than the potential users of the dataset do. The principle at work here should be “Don’t solve problems you don’t have”.

Encumbering this amazing dataset with such tight restrictions effectively kills it. It more or less guarantees it cannot have the impact I assume they were looking for. I hope they reconsider their options. The best choice for any open data is CC-BY.

Isn't everything on the internet free?

A couple of weeks ago I wrote about a new publication from Elsevier. The book seems to contain quite a bit of unlicensed copyrighted material, collected without proper permission from public and private groups on LinkedIn, SPE papers, and various websites. I had hoped to have an update for you today, but the company is still "looking into" the matter.

The comments on that post, and on Twitter, raised some interesting views. Like most views, these views usually come in pairs. There is a segment of the community that feels quite enraged by the use of (fully attributed) LinkedIn comments in a book; but many people hold the opposing view, that everything on the Internet is fair game.

I sympathise with this permissive view, to an extent. If you put stuff on the web, people are (one hopes) going to see it, interpret it, and perhaps want to re-use it. If they do re-use it, they may do so in ways you did not expect, or perhaps even disagree with. This is okay — this is how ideas develop. 

I mean, if I can't use a properly attributed LinkedIn post as the basis for a discussion, or a YouTube video to illustrate a point, then what's really the point of those platforms? It would undermine the idea of the web as a place for interaction and collaboration, for cultural or scientific evolution. 

Freely accessible but not free

Not to labour the point, but I think we all understand that what we put on the Internet is 'out there'. Indeed, some security researchers suggest you should assume that every email you type will be in the local newspaper tomorrow morning. This isn't just 'a feeling', it's built into how the web works. most websites are exclusively composed of strictly copyrighted content, but most websites also have conspicuous buttons to share that copyrighted content — Tweet this, Pin that, or whatever. The signals are confusing... do you want me to share this or not? 

One can definitely get carried away with the idea that everything should be free. There's a spectrum of infractions. On the 'everyday abuse' end of things, we have the point of view that grabbing randoms images from the web and putting the URL at the bottom is 'good enough'. Based on papers at conferences, I suspect that most people think this and, as I explained before, it's definitely not true: you usually need permission. 

At the other end of the scale, you end up with Sci-Hub (which sounds like it's under pressure to close at the moment) and various book-sharing sites, both of which I think are retrograde and anti-open-access (as well as illegal). I believe we should respect the copyright of others — even that of supposedly evil academic publishers — if we want others to respect ours.

So what's the problem with a bookful of LinkedIn posts and other dubious content? Leaving aside for now the possibility of more serious plagiarism, I think the main problem is simply that the author went too far — it is a wholesale rip-off of 350 people's work, not especially well done, with no added value, and sold for a hefty sum.

Best practice for re-using stuff on the web

So how do we know what is too far? Is it just a value judgment? How do you re-use stuff on the web properly? My advice:

• Stop it. Resist the temptation to Google around, grabbing whatever catches your eye.
• Re-use sparingly, only using one or two of the real gems. Do you really need that picture of a casino on your slide entitled "Risk and reward"? (No, you definitely don't.)
• Make your own. Ideas are not copyrightable, so it might be easier to copy the idea and make the thing you want yourself (giving credit where it's due, of course).
• Ask for permission from the creator if you do use someone's stuff. Like I said before, this is only fair and right.
• Go open! Preferentially share things by people who seem to be into sharing their stuff.
• Respect the work. Make other people's stuff look awesome. You might even...
• ...improve the work if you can — redraw a diagram, fix a typo — then share it back to them and the community.
• Add value. Add real insight, combine things in new ways, surprise and delight the original creators.
• And finally, if you're not doing any of these things, you better not be trying to profit from it. 

Everything on the Internet is not free. My bet is that you'll be glad of this fact when you start putting your own stuff out there. We can all do our homework and model good practice. This is especially important for those people in influential positions in academia, because their behaviours rub off on so many impressionable people. 

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We talked to Fernando Enrique Ziegler on the Undersampled Radio podcast last week. He was embroiled in the 'bad book' furore too, in fact he brought it to many people's attention. So this topic came up in the show, as well as a lot of stuff about pore pressure and hurricanes. Check it out...

Attribution is not permission

This morning a friend of mine, Fernando Enrique Ziegler, a pore pressure researcher and practitioner in Houston, let me know about an "interesting" new book from Elsevier: Practical Solutions to Integrated Oil and Gas Reservoir Analysis, by Enwenode Onajite, a geophysicist in Nigeria... And about 350 other people.

What's interesting about the book is that the majority of the content was not written by Onajite, but was copy-and-pasted from discussions on LinkedIn. A novel way to produce a book, certainly, but is it... legal?

Who owns the content?

Before you read on, you might want to take a quick look at the way the book presents the LinkedIn material. Check it out, then come back here. By the way, if LinkedIn wasn't so damn difficult to search, or if the book included a link or some kind of proper citation of the discussion, I'd show you a conversation in LinkedIn too. But everything is completely untraceable, so I'll leave it as an exercise to the reader.

LinkedIn's User Agreement is crystal clear about the ownership of content its users post there:

[...] you own the content and information that you submit or post to the Services and you are only granting LinkedIn and our affiliates the following non-exclusive license: A worldwide, transferable and sublicensable right to use, copy, modify, distribute, publish, and process, information and content that you provide through our Services [...]

This is a good user agreement [Edit: see UPDATE, below]. It means everything you write on LinkedIn is © You — unless you choose to license it to others, e.g. under the terms of Creative Commons (please do!).

Fernando — whose material was used in the book — tells me that none of the several other authors he has asked gave, or were even asked for, permission to re-use their work. So I think we can say that this book represents a comprehensive infringement of copyright of the respective authors of the discussions on LinkedIn.

Roles and reponsibilities

Given the scale of this infringement, I think there's a clear lack of due diligence here on the part of the publisher and the editors. Having said that, while publishers are quick to establish their copyright on the material they publish, I would say that this lack of diligence is fairly normal. Publishers tend to leave this sort of thing to the author, hence the standard "Every effort has been made..." disclaimer you often find in non-fiction books... though not, apparently, in this book (perhaps because zero effort has been made!).

But this defence doesn't wash: Elsevier is the copyright holder here (Onajite signed it over to them, as most authors do), so I think the buck stops with them. Indeed, you can be sure that the company will make most of the money from the sale of this book — the author will be lucky to get 5% of gross sales, so the buck is both figurative and literal.

Incidentally, in Agile's publishing house, Agile Libre, authors retain copyright, but we take on the responsibility (and cost!) of seeking permissions for re-use. We do this because I consider it to be our reputation at stake, as much as the author's.

OK, so we should blame Elsevier for this book. Could Elsevier argue that it's really no different from quoting from a published research paper, say? Few researchers ask publishers or authors if they can do this — especially in the classroom, "for educational purposes", as if it is somehow exempt from copyright rules (it isn't). It's just part of the culture — an extension of the uneducated (uninterested?) attitude towards copyright that prevails in academia and industry. Until someone infringes your copyright, at least.

Seek permission not forgiveness

I notice that in the Acknowledgments section of the book, Onajite does what many people do — he gives acknowledgement ("for their contributions", he doesn't say they were unwitting) to some the authors of the content. Asking for forgiveness, as it were (but not really). He lists the rest at the back. It's normal to see this sort of casual hat tip in presentations at conferences — someone shows an unlicensed image they got from Google Images, slaps "Courtesy of A Scientist" or a URL at the bottom, and calls it a day. It isn't good enough: attribution is not permission. The word "courtesy" implies that you had some.

Indeed, most of the figures in Onajite's book seem to have been procured from elsewhere, with "Courtesy ExxonMobil" or whatever passing as a pseudolicense. If I was a gambler, I would bet that the large majority were used without permission.

OK, you're thinking, where's this going? Is it just a rant? Here's the bottom line:

The only courteous, professional and, yes, legal way to re-use copyrighted material — which is "anything someone created", more or less — is to seek written permission. It's that simple.

A bit of a hassle? Indeed it is. Time-consuming? Yep. The good news is that you'll usually get a "Sure! Thanks for asking". I can count on one hand the number of times I've been refused.

The only exceptions to the rule are when:

• The copyrighted material already carries a license for re-use (as Agile does — read the footer on this page).
• The copyright owner explicitly allows re-use in their terms and conditions (for example, allowing the re-publication of single figures, as some journals do).
• The law allows for some kind of fair use, e.g. for the purposes of criticism.

In these cases, you do not need to ask, just be sure to attribute everything diligently.

A new low in scientific publishing?

What now? I believe Elsevier should retract this potentially useful book and begin the long process of asking the 350 authors for permission to re-use the content. But I'm not holding my breath.

By a very rough count of the preview of this $130 volume in Google Books, it looks like the ratio of LinkedIn chat to original text is about 2:1. Whatever the copyright situation, the book is definitely an uninspiring turn for scientific publishing. I hope we don't see more like it, but let's face it: if a massive publishing conglomerate can make $87 from comments on LinkedIn, it's gonna happen.

What do you think about all this? Does it matter? Should Elsevier do something about it? Let us know in the comments.

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UPDATE Friday 1 September

Since this is a rather delicate issue, and events are still unfolding, I thought I'd post some updates from Twitter and the comments on this post:

• Elsevier is aware of these questions and is looking into it.
• Re-read the user agreement quote carefully. As Ronald points out below, I was too hasty — it's really not a good user agreement, LinkedIn have a lot of scope to re-use what you post there. 
• It turns out that some people were asked for permission, though it seems it was unclear what they were agreeing to. So the author knew that seeking permission was a good idea.
• It also turns out that at least one SPE paper was reproduced in the book, in a rather inconspicuous way. I don't know if SPE granted rights for this, but the author at least was not identified.
• Some people are throwing the word 'plagiarism' around, which is rather a serious word. I'm personally willing to ascribe it to 'normal industry practices' and sloppy editing and reviewing (the book was apparently reviewed by no fewer than 5 people!). And, at least in the case of the LinkedIn content, proper attribution was made. For me, this is more about honesty, quality, and value in scientific publishing than about misconduct per se.
• It's worth reading the comments on this post. People are raising good points.

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Part of the thumbnail image was created by Jannoon028 — Freepik.com — and licensed CC-BY.

ORCL vs GOOG: the $9 billion API

What's this? Two posts about the legal intricacies of copyright in the space of a fortnight? Before you unsubscribe from this definitely-not-a-law-blog, please read on because the case of Oracle America, Inc vs Google, Inc is no ordinary copyright fight. For a start, the damages sought by Oracle in this case [edit: could] exceed $9 billion. And if they win, all hell is going to break loose.

The case is interesting for some other reasons besides the money and the hell breaking loose thing. I'm mostly interested in it because it's about open source software. Specifically, it's about Android, Google's open source mobile operating system. The claim is that the developers of Android copied 37 application programming interfaces, or APIs, from the Java software environment that Sun released in 1995 and Oracle acquired in its $7.4 billion acquisition of Sun in 2010. There were also claims that they copied specific code, not just the interface the code presents to the user, but it's the API bit that's interesting.

What's an API then?

You might think of software in terms of applications like the browser you're reading this in, or the seismic interpretation package you use. But this is just one, very high-level, type of software. Other, much lower-level software runs your microwave. Developers use software to build software; these middle levels contain FORTRAN libraries for tasks like signal processing, tools for making windows and menus appear, and still others for drawing, or checking spelling, or drawing shapes. You can think of an API like a user interface for programmers. Where the user interface in a desktop application might have menus and dialog boxes, the interface for a library has classes and methods — pieces of code that hold data or perform tasks. A good API can be a pleasure to use. A bad API can make grown programmers cry. Or at least make them write a new library.

The Android developers didn't think the Java API was bad. In fact, they loved it. They tried to license it from Sun in 2007 and, when Sun was bought by Oracle, from Oracle. When this didn't work out, they locked themselves in a 'cleanroom' and wrote a runtime environment called Dalvik. It implemented the same API as the Java Virtual Machine, but with new code. The question is: does Oracle own the interface — the method names and syntaxes? Are APIs copyrightable?

I thought this case ended years ago?

It did. Google already won the argument once, on 31 May 2012, when the court held that APIs are "a system or method of operations" and therefore not copyrightable. Here's the conclusion of that ruling:

The original 2012 holding that Google did not violate the copyright Act by copying 37 of Java's interfaces. Click for the full PDF.

But it went to the Federal Circuit Court of Appeals, Google's petition for 'fair use' was denied, and the decision was sent back to the district court for a jury trial to decide on Google's defence. So now the decision will be made by 10 ordinary citizens... none of whom know anything about programming. (There was a computer scientist in the pool, but Oracle sent him home. It's okay --- Google sent a free-software hater packing.)

This snippet from one of my favourite podcasts, Leo Laporte's Triangulation, is worth watching. Leo is interviewing James Gosling, the creator of Java, who was involved in some of the early legal discovery process...

Why do we care about this?

The problem with all this is that, when it come to open source software and the Internet, APIs make the world go round. As the Electronic Frontier Foundation argued on behalf of 77 computer scientists (including Alan Kay, Vint Cerf, Hal Abelson, Ray Kurzweil, Guido van Rossum, and Peter Norvig, ) in its amicus brief for the Supreme Court... we need uncopyrightable interfaces to get computers to cooperate. This is what drove the personal computer explosion of the 1980s, the Internet explosion of the 1990s, and the cloud computing explosion of the 2000s, and most people seem to think those were awesome. The current bot explosion also depends on APIs, but the jury is out (lol) on how awesome that one is.

The trial continues. Google concluded its case yesterday, and Oracle called its first witness, co-CEO Safra Catz. "We did not buy Sun to file this lawsuit," she said. Reassuring, but if they win there's going to be a lot of that going around. A lot.

For a much more in-depth look at the story behind the trial, this epic article by Sarah Jeong is awesome. Follow the rest of the events over the next few days on Ars Technica, Twitter, or wherever you get your news. Meanwhile on Agile*, we will return to normal geophysical programming, I promise :)

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ADDENDUM on 26 May 2016... Google won the case with the "fair use" argument. So the appeal court's decision that APIs are copyrightable stands, but the jury were persuaded that this particular instance qualified as fair use. Oracle will appeal.

Copyright and seismic data

Seismic company GSI has sued a lot of organizations recently for sharing its copyrighted seismic data, undermining its business. A recent court decision found that seismic data is indeed copyrightable, but Canadian petroleum regulations can override the copyright. This allows data to be disclosed by the regulator and copied by others — made public, effectively.

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Seismic data is not like other data

Data is uncopyrightable. Like facts and ideas, data is considered objective, uncreative — too cold to copyright. But in an important ruling last month, the Honourable Madam Justice Eidsvik established at the Alberta Court of the Queen's Bench that seismic data is not like ordinary data. According to this ruling:

...the creation of field and processed [seismic] data requires the exercise of sufficient skill and judgment of the seismic crew and processors to satisfy the requirements of [copyrightability].

These requirements were established in the case of accounting firm CCH Canadian Limited vs The Law Society of Upper Canada (2004) in the Supreme Court of Canada. Quoting from that ruling:

What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment. By skill, I mean the use of one’s knowledge, developed aptitude or practised ability in producing the work. By judgment, I mean the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work.

Interestingly:

There exist no cases expressly deciding whether Seismic Data is copyrightable under the American Copyright Act [in the US].

Fortunately, Justice Eidsvik added this remark to her ruling — just in case there was any doubt:

I agree that the rocks at the bottom of the sea are not copyrightable.

It's really worth reading through some of the ruling, especially sections 7 and 8, entitled Ideas and facts are not protected and Trivial and purely mechanical respectively. 

Why are we arguing about this?

This recent ruling about seismic data was the result of an action brought by Geophysical Service Incorporated against pretty much anyone they could accuse of infringing their rights in their offshore seismic data, by sharing it or copying it in some way. Specifically, the claim was that data they had been required to submit to regulators like the C-NLOPB and the C-NSOPB was improperly shared, undermining its business of shooting seismic data on spec.

You may not have heard of GSI, but the company has a rich history as a technical and business innovator. The company was the precursor to Texas Instruments, a huge player in the early development of computing hardware — seismic processing was the 'big data' of its time. GSI still owns the largest offshore seismic dataset in Canada. Recently, however, the company seems to have focused entirely on litigation.

The Calgary company brought more than 25 lawsuits in Alberta alone against corporations, petroleum boards, and others. There have been other actions in other jurisdictions. This ruling is just the latest one; here's the full list of defendants in this particular suit (there were only 25, but some were multiple entities):

• Devon Canada Corporation
• Statoil Canada Ltd.
• Anadarko Petroleum Corporation
• Anadarko US Offshore Corporation
• NWest Energy Corp.
• Shoal Point Energy Ltd.
• Vulcan Minerals Inc.
• Corridor Resources Inc.
• CalWest Printing and Reproductions
• Arcis Seismic Solutions Corp.
• Exploration Geosciences (UK) Limited
• Lynx Canada Information Systems Ltd.
• Olympic Seismic Ltd.
• Canadian Discovery Ltd.
• Jebco Seismic UK Limited
• Jebco Seismic (Canada) Company
• Jebco Seismic, LP
• Jebco/Sei Partnership LLC

• Encana Corporation
• ExxonMobil Canada Ltd.
• Imperial Oil Limited
• Plains Midstream Canada ULC
• BP Canada Energy Group ULC
• Total S.A.
• Total E&P Canada Ltd.
• Edison S.P.A.
• Edison International S.P.A.
• ConocoPhillips Canada Resources Corp.
• Canadian Natural Resources Limited
• MGM Energy Corp
• Husky Oil Limited
• Husky Oil Operations Limited
• Nalcor Energy – Oil and Gas Inc.
• Suncor Energy Inc.
• Murphy Oil Company Ltd.
• Devon ARL Corporation

Why did people share the data?

According to Section 101 Disclosure of Information of the Canada Petroleum Resources Act (1985) , geophysical data should be released to regulators — and thus, effectively, the public — five years after acquisition:

(2) Subject to this section, information or documentation is privileged if it is provided for the purposes of this Act [...]
(2.1) Subject to this section, information or documentation that is privileged under subsection 2 shall not knowingly be disclosed without the consent in writing of the person who provided it, except for the purposes of the administration or enforcement of this Act [...]
⋮
(7) Subsection 2 does not apply in respect of the following classes of information or documentation obtained as a result of carrying on a work or activity that is authorized under the Canada Oil and Gas Operations Act, namely, information or documentation in respect of
⋮
(d) geological work or geophysical work performed on or in relation to any frontier lands,
    (i) in the case of a well site seabed survey [...], or
    (ii) in any other case, after the expiration of five years following the date of completion of the work;

As far as I can tell, this does not necessarily happen, by the way. There seems to be a great deal of confusion in Canada about what 'seismic data' actually is — companies submit paper versions, sometimes with poor processing, or perhaps only every 10th line of a 3D. But the Canada Oil and Gas Geophysical Operations Regulations are quite clear. This is from the extensive and pretty explicit 'Final Report' requirements: 

(j) a fully processed, migrated seismic section for each seismic line recorded and, in the case of a 3-D survey, each line generated from the 3-D data set;

The intent is quite clear: the regulators are entitled to the stacked, migrated data. The full list is worth reading, it covers a large amount of data. If this is enforced, it is not very rigorous. If these datasets ever make it into the hands of the regulators, and I doubt it ever all does, then it's still subject to the haphazard data management practices that this industry has ubiquitously adopted.

GSI argued that 'disclosure', as set out in Section 101 of the Act, does not imply the right to copy, but the court was unmoved:

Nonetheless, I agree with the Defendants that [Section 101] read in its entirety does not make sense unless it is interpreted to mean that permission to disclose without consent after the expiry of the 5 year period [...] must include the ability to copy the information. In effect, permission to access and copy the information is part of the right to disclose.

So this is the heart of the matter: the seismic data was owned and copyrighted by GSI, but the regulations specify that seismic data must be submitted to regulators, and that they can disclose that data to others. There's obvious conflict between these ideas, so which one prevails? 

The decision

There is a principle in law called Generalia Specialibus Non Derogant. Quoting from another case involving GSI:

Where two provisions are in conflict and one of them deals specifically with the matter in question while the other is of more general application, the conflict may be avoided by applying the specific provision to the exclusion of the more general one. The specific prevails over the more general: it does not matter which was enacted first.

Quoting again from the recent ruling in GSI vs Encana et al.:

Parliament was aware of the commercial value of seismic data and attempted to take this into consideration in its legislative drafting. The considerations balanced in this regard are the same as those found in the Copyright Act, i.e. the rights of the creator versus the rights of the public to access data. To the extent that GSI feels that this policy is misplaced, its rights are political ones – it is not for this Court to change the intent of Parliament, unfair as it may be to GSI’s interests.

Finally:

[...the Regulatory Regime] is a complete answer to the suggestion that the Boards acted unlawfully in disclosing the information and documentation to the public. The Regulatory Regime is also a complete answer to whether the copying companies and organizations were entitled to receive and copy the information and documentation for customers. For the oil companies, it establishes that there is nothing unlawful about accessing or copying the information from the Boards [...]

So that's it: the data was copyright, but the regulations override the copyright, effectively. The regulations were legal, and — while GSI might find the result unfair — it must operate under them. 

The decision must be another step towards the end of this ugly matter. Maybe it's the end. I'm sure those (non-lawyers) involved can't wait for it to be over. I hope GSI finds a way back to its technical core and becomes a great company again. And I hope the regulators find ways to better live up to the fundamental idea behind releasing data in the first place: that the availability of the data to the public should promote better science and better decisions for Canada's offshore. As things stand today, the whole issue of 'public subsurface data' in Canada is, frankly, a mess.

What is Creative Commons?

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Not a comprehensive answer either, but much more brilliantI just found myself typing a long email in reply to the question, "What is a Creative Commons license and how do I use it?" Instead, I thought I'd post it here. Note: I am not a lawyer, and this is not a comprehensive answer.

Creative Commons depends on copyright

There is no relinquishment of copyright. This is important. In the case of 52 Things, Agile Geoscience is the copyright holder. In the case of an article, it's the authors themselves, unless the publisher gets them to sign a form relinquishing it. Copyright is an automatic, moral right (under the Berne Convention), and boils down to the right to be identified as the authors of the work ('attribution').

Most copyright holders grant licenses to re-use their work. For instance, you can pay hundreds of dollars to reproduce a couple of pages from an SPE manual for a classroom of students (if you are insane). You can reprint material from a book or journal article — again, usually for a fee. These licenses are usually non-exclusive, non-transferable, and use-specific. And the licensee must (a) ask and (b) pay the licensor (that is, the copyright holder). This is 'the traditional model'.

Obscurity is a greater threat than piracy

Some copyright holders are even more awesome. They recognize that (a) it's a hassle to always have to ask, and (b) they'd rather have the work spread than charge for it and stop it spreading. They wish to publish 'open' content. It's exactly like open source software. Creative Commons is one, very widespread, license you can apply to your work that means (a) they don't have to ask to re-use it, and (b) they don't have to pay. You can impose various restrictions if you must.

Creative Commons licenses are everywhere. You can apply Creative Commons licenses at will, to anything you like. For example, you can CC-license your YouTube videos or Flickr photos. We CC-license our blog posts. Almost everything in Wikipedia is CC-licensed. You could CC-license a single article in a magazine (in fact, I somewhat sneakily did this last February). You could even CC-license a scientific journal (imagine!). Just look at all the open content in the world!

Creative Commons licenses are easy to use. Using the license is very easy: you just tell people. There is no cost or process. Look at the footer of this very page, for example. In print, you might just add the line This article is licensed under a Creative Commons Attribution license. You may re-use this work without permission. See http://creativecommons.org/licenses/by/3.0/ for details. (If you choose another license, you'd use different wording.)

I recommend CC-BY licenses. There are lots of open licenses, but CC-BY strikes a good balance between being well-documented and trusted, and being truly open (though it is not recognized as such, on a technicality, by copyfree.org). The main point is that they are very open, allowing anyone to use the work in any way, provided they attribute it to the author and copyright holder — it's just like scientific citation, in a way.

Do you openly license your work? Or do you wish more people did? Do you notice open licenses?

Creative Commons graphic by Flickr user Michael Porter. The cartoon is from Nerdson, and licensed CC-BY. 'Obscurity is a greater threat than piracy' is paraphrased from a quote by Tim O'Reilly, publishing 2.0 legend.