The Licensing Corner

• Jurisdiction: United States,Federal,California
• Citation: Vol. 42 No. 2
• Publication year: 2017
• Author: JOHN PAVOLOTSKY
• topic: Business of Law,Contracts,Intellectual Property,Technology

The Licensing Corner

JOHN PAVOLOTSKY
Intel Corporation

SEAN HOGLE
Sean Hogle PC

THE BRAVE NEW WORLD OF DATA OWNERSHIP AND LICENSING

Data has been on the mind of the Licensing Interest Group (LIG) for at least the past couple of years. At each monthly meeting, we have someone present a topic of his or her choice, and in June 2015, that topic was data ownership and licensing trends. In October 2015, we followed up with a webinar on this topic.¹ Data licensing was very capably covered in one of the presentations at the last IP Institute, in Santa Barbara, and we continue to discuss developments in this space during our monthly meetings.

As a sign of its rise to prominence, the topic of data ownership and licensing was featured in the Business & Finance page of the April 7, 2017 issue of the Wall Street Journal. The WSJ reported about a kerfuffle between the Wall Street banks and electronic traders, on the one hand, and the New York Stock Exchange, on the other.² Firms place orders on an exchange, and the exchange aggregates those orders and licenses high-speed data feeds to firms, including to those that placed the original orders. Recently, the NYSE had updated its Master User Agreement, which must be agreed to by a firm to continue trading on the exchange. While the previous version apparently gave the NYSE a license to each customer's raw data feed, the current version is silent on ownership of the original data feed (and contains no license from the customer to NYSE).

Specifically, Section 5 (Ownership) of the NYSE Master User Agreement provides: "All patents, copyrights, trade secrets, trademarks and other property rights in or related to the Platform and the information and data made available through the Platform (including compilation rights in information and data) are and will remain the exclusive property of NYSE or its licensors."³ In turn, "Platform" includes the New York Stock Exchange or another platform made available by NYSE to, and selected by, the customer.

It is debatable whether the rights "in or related to the Platform and the information and data made available through the platform" would sweep up any rights in a customer's trading orders entered into a platform. Customer's data does not appear to be "in or related to the platform," as that seems to cover the platform's technological and operational aspects. Likewise, "data made available through the platform" would cover any rights in the high-speed data feeds, and, implicitly, not the original order placed by the firm now receiving the aggregate feed, but this is less than clear. Normatively, a customer should not lose any rights in the data it makes available to a service...