What to do when license statements conflict?

Question

Sometimes, data is listed as "open data", yet also has copyright statements that don't mention any permitted reuse. If the "data owner" is not responsive, what's the best way to determine if the data is really open, or if the copyright statement terms are still current?

This example is from the Massachusetts Open Data Initiative, where the terms of use include permission to "Use the data in any lawful manner, including for profit","Reproduce the data in full or in part", etc.

On the Population Data page there's a link to historical vital records, produced by Massachusetts Archives. All their pages contain a Terms and Conditions footer link which states "©2012 Secretary of the Commonwealth of Massachusetts. The documents provided in this web site are for informational purposes only.". No mention of permission to reuse.

Obviously the best way to resolve this conflict is to simply ask the data owner. However in this case the project seems to have been abandoned or mothballed, many of the contact links are now broken, and no response from the data owner has been received from multiple attempts to make contact on the remaining addresses.

Given this is state data (not federal), is there any rule of thumb that be used to indicate if the data can be reused (does "informational purposes" include that?), or is there some other way to know if an Open Data initiative, even if abandoned part-way through, trumps a legacy copyright footer?

Clarification

In response to the first answer from IM, I do need to explain a bit more clearly:

• the Mass. Open Data is just an example. I'm looking for generic rules when there are conflicts, like that.
• I'm wondering what is the purpose of an Open Data directory if the collections it links to are not open data? In other words, should the presence of a collection in a state open data directory indicate that the data is intended to be open data under the open data terms? If not, why list it?
• in this case the data owner (archives) have failed to respond after multiple attempts to contact regarding that collection. Thanks though for pointing out yet another license (public data without copyright but have to complete a permission form to publish) which conflicts with both the Open Data license, and with the copyright statement, but that does make it even harder to work out which one of the three versions is intended to apply to the example collection!

Answer 1

The Massachusetts Open Data Initiative seems to provide only a link to the data, not the data themselves. Their terms of use couldn't be really applied here. The terms and conditions of the Massachusetts Archives website refer to the documents, not to their data collections.

As to historical vital records, this page states that "[t]he Archives' collections are public records and are open to all for research." Besides, it states

Publication

The Archives requires patrons who copy materials for publication to complete a permission to publish form agreeing to use a standard citation for archival materials and to give a copy of the published work to the Archives. There are no charges for publication.

Copyright

Records created by Massachusetts government are not copyrighted and are available for public use. Copyright for materials submitted to state agencies may be held by the person or organization that created the document. Patrons are responsible for clearing copyright on such materials.

There is also A Guide to Massachusetts Public Records Law on their website.

I'd suggest contacting archives staff to clarify the issues with a permission to publish form and a proper citation.

Hope it helps.

(edited in response to Rob's clarification)

1. Sorry, I focused on this precise example and missed your more general question. Let's make clear some terms, shall we? For any data distribution process, there are the following participants:

   • data collector (a person or persons who actually collected the data);
   • author/creator/owner/principal investigator - it might be either the collector herself or an organization, e.g. government agency, university, research institute, which the collector has collected the data for;
   • data publisher (keeps the data and provides them for someone's use);
   • data distributor (it might be the same organization as publisher, but also might be another organization, say, with broader opportunities to disseminate information)

   Now, the copyright always remains with the author/owner. And whatever other participants do, the data belong to the principal investigator.
   Data provider/publisher shall comply with the owner's terms of use, especially regarding confidentiality.
   Data distributor shall comply with the data publisher's terms of use, hence, automatically, with the owner's.
   When someone looks for data, one should apply the terms of use attached to the data, whether they are written by the owner, publisher, or distributor. If the terms of use are missing or conflicting, one should apply the terms of use of the participant, which is one step higher on that list - publisher's instead of distributor's, or owner's instead of publisher's.
   In this case, the data owner should be, in my understanding, the Massachusetts Registry of Vital Records and Statistics, the data publisher should be the Massachusetts Archives, and the Massachusetts Open Data Initiative goes as a distributor.
   Can you download the data from the MODI? No. There is only a link, so forget about their terms of use. Can you get the data from the archives? Yes. OK, then you should comply with their terms of use. Specifically: not with the terms of use of their website but with the terms of use of their data collections under the Massachusetts law.
   According to my experience, a possible citation for these data might look something like this: Massachusetts Registry of Vital Records and Statistics, 2013, Vital Statistic Records (1841-1910). Boston, MA: Massachusetts Archives [distributor], though I'd hesitate to use it without contacting the archives.

2. What is the purpose of an Open Data directory if the collections it links to are not open data? Excellent question. Well, public records are open data, are they not? The fact that you should do some paperwork for the data publisher doesn't make these data closed or private. But besides this, I totally agree with you: the ultimate goal of any open data distributor should be to provide open data, not to complicate the whole process.

3. As discussed above, 2 out of 3 terms of use are not applicable here (one refers to a link, another to a website, but only the third one mentions the actual data).
   Have to say, I really sympathize with you about what you are going through. (The archives didn't answer even to phone calls? What's that again, the government shutdown?)