Can you copyright LiDAR?

A few weeks ago, I wanted to demonstrate how geometric compression can shorten download times for online dissemination of 3D archeological artifacts. The demo failed. My web page was gone. The web admin told me later that he had to delete it after receiving an email from a director at CyArk stating that I was “[…] hosting unauthorized content from CyArk […] ” and that “[…] Dr. Isenburg gained unauthorized access to our information and the re-posted it to his webpage […]”. Bummer. Unintentionally, I had become “the raider of the CyArk”. A point plunderer. A LiDAR looter. A scan scrounger. A laser pirate … arrr … (-;

How did I fall so low? After reading this LiDAR news article about CyArk’s new online 3D viewer I invested serious time into understanding their content delivery system and suggested how to shorten download times as I had done a lot of prior research on this particular topic (see this, this, this or this page). So, I created several interactive java-based web pages for them to demonstrate how – with some quantization, simple prediction, and clever scripting – more web-efficient 3D content might be possible. I did these experiments with their data sets to allow an apples-to-apples comparison: a point model (Ti’kal) and a mesh model (Mount Rushmore).

cyark_mount_rushmore_small

After a long technical exchange the person at CyArk suddenly demanded that I take down the compressed content. I was surprised and asked why I should have to delete these illustrative examples on 3D compression that represented a significant investment in volunteered time and energy.

Me: “What you mean with take down? Delete it from my webpages? But I am using it as a purely educational example for scanner precision and coordinate resolution. I am not promoting it in any context that would interfere with the mission of CyArk. I do not quite follow the imperative here. Aren’t you a non-profit site dedicated to science and education? And anyone could download those points clouds from your site just the way I did it. It’s not rocket science … (-:”

Person at CyArk: “And, yes, to clarify my request, I would like you to delete any content from your server or webpages. Sorry if I was vague. Thanks!”

Me: “I believe I am in accordance with both Ben (Kacyra)’s vision and the creative commons license with my educational use of the 3D content (see http://archive.cyark.org/copyright). Is there something I am missing?”

I considered myself well informed about CyArk’s mission on providing open access to 3D data for research, education, and virtual tourism through various media such as Wikipedia and Ben Kacyra’s visionary TED talk. I assumed that my creative commons argument had resonated because I did not hear back from them. I only realized that CyArk was not interested in explaining their licensing but simply had my pages removed when I tried to access this demo.

A few days ago I saw Tom Greaves, executive director at CyArk, commenting “Sweeeet use of CyArk data.” on their blog entry which describes the creation of a sugary fudge replica of Ti’kal – the very same data set that I had been using – for the launch event of a new sugar series by British-based multinational agribusiness Tate & Lyle.

Tik’al Fudge Cake made with golden caster sugar, over 80 cm tall

I like to have fun with LiDAR and appreciate the educational factor of such events. Yet I wonder whether the Guatemalan people would be that much happier to see their ancient cultural heritage presented as a piece of cake to promote a new line of sugars than to see it used as a demo on how to Web-optimize 3D content … (-;

I took this as an opportunity to – once more – inquire about the creative commons license of CyArk and I finally received an answer from Tom.

Dear Dr. Isenburg,

Please understand that only some of […]     […] have any questions.

Sincerely,
Tom Greaves

Executive Director
CyArk

Unfortunately Tom did “not recall giving” me his “permission to publish” his “private correspondence” as he pointed out shortly after this blog article went live, so I had to remove the reprint of his email. It essentially said that much of the data collected by CyArk remains property of the site owners and that Cake for Breakfast obtained permission to use the 3D scan as the secret ingredient for their Mayan bake job.

copyright cartoon

After inquiring with Tom “So which models are creative commons and which not?” I quickly got the surprising response from Tom that: “None of our 3D point cloud is available under Creative Commons. Only some of the 2D image data is covered by this.

Now this is certainly not what I had been reading into their press releases and news articles. The data-generous openness in access to 3D data that is advertised for example on their mission statement: “Digital Preservation is ‘Preserving cultural heritage sites through collecting, archiving and providing open access to data created by 3D laser scanning, digital modeling, and other state-of-the-art technologies,’ the CyArk Mission.” is apparently not the practiced reality.

So I asked in my LAStools user forum about the experiences of others: What are the most and least permitting licenses for such data and what do they mean in practice? How do I know what is open and what not? Can you help clarifying what “creative commons” licensing means and what it allows and forbids so I don’t violate anyone’s license in the future. This sparked discussions with interesting outcomes:

  1. the creative commons (non-commercial) license is useless
    The folks behind @OpenAccessArch picked up the story to provide their view of the particularities of the creative commons (non-commercial) license used by CyArk in a long blog post titled “Creative Commons Non-commercial A Cruel Joke.
  2. it is in general not possible to copyright a LiDAR scan
    Doug Rocks-Macqueen from @OpenAccessArch also started the fundamental discussion whether it is even possible to copyright a LiDAR scan in the first place. Apparently not – at least not for an object whose copyright has already expired and for details read this message thread. His closing argument was that in this legal battle between Meshwerks, Inc. and Toyota Motor Sales U.S.A., Inc. the Court of Appeals affirmed the district court’s opinion that “3D models of physical objects, if faithfully and accurately representing the original, are not original enough to warrant copyright protection.”
  3. do not engage in open-washing … (-:
    In CyArk’s defense it needs to be said that there is probably a collision between their vision and the contract terms specified by the different site owners that they have to respect in order to get the permission to scan a site. What is lacking are clear terms of use in their communications and proper protection mechanisms. The academic pioneers of 3D scanning at Stanford university had to deal with similar issues during their Digital Michelangelo Project and created ScanView: a secure client / server rendering system that permits users to examine 3D models, but not extract the underlying data. In summary: do not claim your data is open and allow access to it when it is not.

With all the publicity I was worried that my little rabble rousing might be perceived as disruptive instead of constructive by the community until someone reassured me that: “I think we’re all quite happy that the discussion is happening. Between you and me, CyArk have a reputation as being rather less open with their data than their publicity would suggest.” … (-;

Martin @rapidlasso

PS: Be aware that all comments to this article will be considered “creative commons”. Or maybe not … (-;

cyark_tikal_sugarcubes_400The (loosely related) image shown above was obtained here and is courtesy of CyArk. I assume this use is allowed under their copyright and does not violate the creative commons (non-commercial) license … (-;

Addendum (May 1st, 2013): As a result of this article CyArk not only updated their copyright notice to exclude point clouds from the Creative Commons license but also added a very clear data use policy statement.

16 thoughts on “Can you copyright LiDAR?

  1. Very interesting thanks Martin. I’m pleased that you are able to take up these issues and keep us informed.
    Regards Bob Peever

  2. Pingback: Copyright Discussion of LiDAR Data | Weather in the City

  3. I had a few notes based on items that came up in the related discussion. I have a background in software licensing, not because I am a lawyer, but because when I worked for Sun Microsystems (1995 – 2008) I was involved in moving the Java platform to open source. My role was as the liaison between engineering and legal for that project. I also have a background having co-founded a nonprofit based in San Francisco in 2002 (yes my time overlapped, I was part-time at Sun while working on the legal open source issues for Java)

    It is important to note that being a nonprofit in the US, does not restrict people from using proprietary licenses or for charging fees for what they do. It does have other requirements about how the organization is run, specifically that there cannot be any form of “profit sharing” and that money that is raised is used to further the nonprofit mission of the organization. An example is that a ballet company is almost always a nonprofit in the US, but they can sell tickets to their performances. Most ballet companies do not make enough from ticket sales to pay all their costs, so they have to raise additional funds as well. Nonprofits can pay people salaries – but those salaries have to be consistent (or less) than what others with similar experience and duties would be paid in the commercial sector. There are many other rules too. My point is that just because an entity is a nonprofit does not mean they have to give everything away. However, sometimes this can be dictated by a funder. My nonprofit organization has a principle of working to develop open source software in computational photography. We do this through collaboration with a number of research labs and universities. We state that we’re doing this in our funding proposals, and some of the agencies we approach for funding only fund open source projects, or at least require that the software be given away (not necessarily the source code). In addition we produce user guides and other materials that are available under a CC license. On top of this work we provide consulting and training for a fee. I would argue we are more open than CyArk with our work, but the point is that nonprofits legally have a lot of flexibility in terms of charging or or giving away their work.

    And finally, a general note about copyrighted material. If something is marked as copyrighted material, (and that copyright holds up if challenged) then you have no rights to do anything with the material, unless there is a license that grants you rights. I agree that CyArk’s website with it’s statement of CC license could easily be misunderstood. Many individuals and institutions use open source licenses for code and CC licenses for content. (this includes my organization) This is because they want to retain copyright, and they want to allow certain uses with certain rules or limits. This is different than public domain, which says that no one has rights in it and anyone can do as they wish. Licenses work in conjunction with copyright. You have copyrighted material, and then you give people certain rights to use it (and usually some restrictions as well) The copyright holder can also license their material under different licenses to different people as they see fit. That’s the advantage of being the copyright holder.

    At the end of the day, you have to judge a nonprofit on the work they do, and how they do it.

    I hope this information is helpful.

    Carla Schroer
    Cultural Heritage Imaging
    http://culturalheritageimaging.org/

  4. While CyArk is a non-profit and they claim to have open access to data, they have actually always acted in a very proprietary manner, not just with their data, but also with many of their software tools. They suggest a lot more openness with their data than is there. They even use the term “open access” in their mission statement which like an “open source” license for software source code, has a specific meaning (see http://www.plos.org/about/open-access/) which they clearly do not meet.

    In response to Martin they seem to be hiding behind the requirements of the sites who deposited data with them, but I suggest this isn’t quite accurate. CyArk does not publish a copy of the license that anyone who wants to deposit data with them must sign. I find this curious all by itself – what are they hiding that they don’t want people to know the terms required to deposit data with them? I have heard from more than one source, that it basically requires that CyArk get all rights to the data, and it is an exclusive license, so the person/entity who collected/created the data gives up some rights to their own data. (I have not personally seen the agreement – since they don’t publish it.) You might try asking them for a copy of their agreement. It would be interesting to see what they say.

    No real repository, like the Archaeological Data Service in the UK, would have a secret license with the kinds of terms CyArk purportedly uses. CyArk should also stop using the term “open access” because that has real meaning, and they don’t even come close to meeting the requirements of open access with their materials.

  5. What I find most interesting is the fundamental question whether a 3D scan of a real site can be copyrighted. As others have pointed out, it is factual data, so it should not be copyrightable.

    Aggravating factors are of course, that the factual data in this case is actually “cultural heritage”, something which should not be proprietary, but rather a common good.

  6. I found early evidence in the comment section of an announcement for the Mount Rushmore Mobile App that CyArk’s 3D data is for the most part not meant for public dissemination (see: http://archive.cyark.org/cyark-and-nps-launch-mount-rushmore-mobile-app-blog) as you can see in the exchange that I copy below:

    June 16th, 2012 Michael Raphael said:
    Similar question – given this is a national monument, when will the 3D data be available to the public for download so anyone can use it in Unity or any other 3D platform for creative derivatives? For that matter, who actually owns this data – CyArk, NPS, or the U.S. public?

    June 16th, 2012 Justin Barton said:
    Michael, The data will not be available to the public beyond our online viewer (which is decimated and does not allow download of the data), but does allow full 3D viewing, measuring and section views. In all CyArk projects, the site owner (in this case the NPS) owns the data. And unfortunately because the site is of high international prominence, there are security concerns that will prevent the undecimated, highly accurate, very detailed original data from becoming available to the public as you mentioned.

  7. Returning to Martin’s original question about the happiness of Guatemalan people, I’ll throw in my five cents from the perspective of cultural heritage.

    In my past working experience, engineers and scientists in varied fields love to dabble with a little bit of CH, to show less tech savvy what marvels one can do. In return they may get exciting experiences in exotic places…Projects that target something defined as major world heritage are more likely to get funding which is why the pyramids and Mona Lisa have been scanned several times. These high profile projects publish articles, hope to get a couple of dashing newspaper stories & TV appearances and not surprisingly the digital content often vanishes in the end – like a fart in Sahara. The poorer the owner of the site, the less likely he/she/it/they are to get anything in return.

    Recently Europeana has been created as a common public platform for us Europeans to publish digital heritage, which I hope will improve the situation of preserving the digital data here given time. For instance here in Finland CH authorities & players are quite poor, so common European plans to digitize, archive and access the data – to develop and create a common infra – are their hope.

    CyArk, a private foundation, typically concentrates only on major heritage sites. So I would advice everyone really wanting to contribute to concentrate on the less flashy and less known places. Believe me, your digital documentation may be the only one that these sites will ever get. And there are plenty of interesting stuff around if you ask your local communities what they find important. Please think what your lasting contribution could be, if you want to act in a sustainable way. Some people have an crazy idea that CH makes you rich, but I have never encountered a company which has done so. In fact preserving CH usually makes you financially poor as everyone owning an old house may have noticed

    CyArk as a charity has started raising funding to continue its work, so I hope to see that data archive in 10 years time as well. Normally CH people think of archiving in the perspective of hundreds of years and only states can basically afford it. And not even many states anymore, as we have seen from recent plans to cut CH. Physical and digital collections are a big problem.

    Such NGOs have their place in our societies, but personally I see no reason to fund or support one that concentrates only on one aspect of CH documentation – and does not create public data. Others may have different opinions though.
    However, at the same time we have traditional CH organizations with legal obligations wondering what to do as their funding is cut. In some countries they have not had much of a budget in the past either. Here is one recent example of cutting funds in Germany https://www.openpetition.de/petition/online/angekuendigte-streichung-der-landeszuschuesse-fuer-die-archaeologie-und-denkmalpflege-zuruecknehmen.

    And a word of warning in the end: cultural heritage wakes surprising passions, so people are often willing to bury the material rather that give it to the others. Worthless things suddenly become worth fortunes and no, local people may not get access or rights to use their own CH. Take also care not to end up in the middle of local fights, because some countries or communities are still building up their identity based on their past heroics – true, imagined, invented, whatever.

  8. Besides most of us still being confused on whether you can copyright a LiDAR scan or not, here is one positive outcome to report:.CyArk has just published very detailed information about its data use policy including an explanation what they meant with providing “open access” to the 3D data.

    http://archive.cyark.org/data-use-policy

    So the issue is resolved. I never had any need for these particular data sets in the first place. They were merely the first examples I got my hands on to showcase potential transmission savings to CyArk’s development team. And after they expressed little interest in my ideas to compress the 3D content to speed up download times for their online viewer, I was just assuming I would be able to re-purpose my demos for other audiences …

  9. Interesting follow-up comment by Brent W. Gelhar in the mobile mapping group on LinkedIn:

    There was a recent discussion of this exact topic in the CBC (Canadian Broadcasting Corp) weekly radio broadcast “Spark”. This link will take you to the show’s home page where you can listen to and/or download portions of episodes

    http://www.cbc.ca/spark/listen/index.html

    The episode no.217 has segments which address “3D and the Law” and “3D Piracy”. These two segments clarify very well that this is a really unclear issue, and it will probably take 10 years or more to work it all out, just as photocopiers,video cassette, e-book, MP3 and other technologies have affected copyright and trademark law interpretations. Just think, how did the Gutenberg press influence trademarks and copyrights? All those poor monks spending their days manually copying the Bible quickly became unemployed but the impact on humanity was dramatic (and positive), just as the emerging 3D technologies are proving to be.

  10. Or you could get your own 3d scanner. We’re about to launch one on Kickstarter that scans every bit as well as Lidar yet is less than $1,000. Contact me if you want to know more.

  11. Thanks for the link Martin. Luckily all the disciplines are trying to develop the principles of information modeling (as we call it in Finnish) e.g. BIM about the same time so one can actually compare them. Bill’s basic principles “1) Measurement 2) Raw data 3) Metadata 4) Process history” and the overall tendency to transparency are sound aims.
    However, the copyright issues and intellectual property rights are and will be a pain…true clash of cultures 😉 I was just reading the morning news about the Trans-Pacific partnership and almost spilled my coffee…
    http://www.theguardian.com/media/2013/nov/13/wikileaks-trans-pacific-partnership-chapter-secret

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s