Dennis D. McDonald (ddmcd@outlook.com) is an independent consultant located in Alexandria Virginia. His services and capabilities are described here. Application areas include project, program, and data management; market assessment, digital strategy, and program planning; change and content management; social media; and, technology adoption. Follow him on Google+. He also publishes on CTOvision.com and aNewDomain.

Do Health Data and Metadata Ownership Licenses Help or Hurt Innovation?

Do Health Data and Metadata Ownership Licenses Help or Hurt Innovation?

By Dennis D. McDonald

To download a free .pdf version of this article click or tap here.

One of the things I didn’t hear discussed much at the recent Health Datapalooza conference in Washington DC was how data ownership and licensing might sometimes create roadblocks to how innovative data products and services based on shared data are developed.

I was reminded of this recently while researching health data governance issues. One of the web sites I visited is operated by CGS. On going to the CGS web address the following “licenses and notices” window is displayed:

The full text of the window is displayed in the Addendum at the end of this article. What gave me pause about going deeper was this statement at the end: 

The license granted herein is expressly conditioned upon your acceptance of all terms and conditions contained in this agreement. If the foregoing terms and conditions are acceptable to you, please indicate your agreement by clicking below on the button labeled “I ACCEPT”. If you do not agree to the terms and conditions, you may not access or use the software. Instead, you must click below on the button labeled “I DO NOT ACCEPT” and exit from this computer screen.

I was not sure what to do about this. What it seemed to be saying was, “If you want to learn more about what our company does, be prepared to experience unknown consequences!”

OK, I’m being a bit snarky here. But my interest is sincere. Some recent CMS related consulting regarding data governance provided me with some insights into the complexities of how data are governed and exchanged on a daily basis via systems involved in administering the Affordable Care Act. Also, given the technical and institutional challenges discussed at Health Datapalooza (which I’ll discuss in more detail in a future blog post) I would think that the types of licensing and software ownership and liability issues raised in the above “online shrink-wrap” licensing agreement should be receiving serious attention as well.

Don’t get me wrong. I’m not proposing that the ownership and liability statements put forth in this window on behalf of the American Medical Association and the American Dental Association should be ignored. I cut my professional teeth on researching and analyzing the intellectual property management challenges posed by new media, and I’ve negotiated software and database publishing licensing agreements. I take intellectual property and ownership rights quite seriously.

What I see in the above “accept it or go away” statement, though is a possible failure to recognize that traditional concepts of ownership and licensing can also act as barriers to developing innovative new products and services from shared health data. 

We see how the current web of licensing agreements is hobbling cable TV operators as they find themselves having to compete more and more with web based streaming services. Isn’t it also possible that similar restrictions regarding health data and metadata might provide similar challenges to creating new and beneficial products and services from shared data?

That may sound a bit extreme, but as its stands now, I am reluctant to click on the above “accept” button. All I really want to do is to find out more about what this company does — but I don’t want to hire an attorney to help me decide what liability I might be exposing myself to as an independent consultant if I click “accept”!

Copyright (c) 2016 by Dennis D. McDonald. Dennis (email ddmcd@outlook.com phone 703-402-7382) is based in Alexandria, Virginia. His experience includes consulting company ownership and management, PMO setup and management, database publishing and data transformation, managing the integration of large systems and databases, corporate technology strategy, social media adoption, statistical research, and IT cost analysis. His clients have included the Centers for Medicare and Medicaid Services (CMS), U.S. Department of Veterans Affairs, the U.S. Environmental Protection Agency, the National Academy of Engineering, General Electric, AIG, the World Bank, Whirlpool, and the National Library of Medicine. He has worked as a project manager, analyst, and researcher throughout the U.S. and in Europe, Egypt, and Hong Kong. His professional web site is here: http://www.ddmcd.com.

BEGIN ADDENDUM

The following text was copied from the popup window displayed on the web site at address http://www.cgsmedicare.com/ on Friday, June 3, 2016:

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License for Use of “Physicians’ Current Procedural Terminology”, (CPT) Fourth Edition

End User/Point and Click Agreement: CPT codes, descriptions and other data only are copyright 2009 American Medical Association (AMA). All Rights Reserved (or such other date of publication of CPT). CPT is a trademark of the AMA.

You, your employees and agents are authorized to use CPT only as contained in the following authorized materials including but not limited to CGS fee schedules, general communications, Medicare Bulletin, and related materials internally within your organization within the United States for the sole use by yourself, employees, and agents. Use is limited to use in Medicare, Medicaid, or other programs administered by the Centers for Medicare & Medicaid Services (CMS). You agree to take all necessary steps to insure that your employees and agents abide by the terms of this agreement.

Any use not authorized herein is prohibited, including by way of illustration and not by way of limitation, making copies of CPT for resale and/or license, transferring copies of CPT to any party not bound by this agreement, creating any modified or derivative work of CPT, or making any commercial use of CPT. License to use CPT for any use not authorized here in must be obtained through the AMA, CPT Intellectual Property Services, 515 N. State Street, Chicago, IL 60610. Applications are available at the AMA websiteExternal Website.

This product includes CPT which is commercial technical data and/or computer data bases and/or commercial computer software and/or commercial computer software documentation, as applicable which were developed exclusively at private expense by the American Medical Association, 515 North State Street, Chicago, Illinois, 60610. U.S. Government rights to use, modify, reproduce, release, perform, display, or disclose these technical data and/or computer data bases and/or computer software and/or computer software documentation are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2)(June 1995) and/or subject to the restrictions of DFARS 227.7202-1(a)(June 1995) and DFARS 227.7202-3(a)June 1995), as applicable for U.S. Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (June 1987) and/or subject to the restricted rights provisions of FAR 52.227-14 (June 1987) and FAR 52.227-19 (June 1987), as applicable, and any applicable agency FAR Supplements, for non-Department Federal procurements.

AMA Disclaimer of Warranties and Liabilities.

CPT is provided “as is” without warranty of any kind, either expressed or implied, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose. AMA warrants that due to the nature of CPT, it does not manipulate or process dates, therefore there is no Year 2000 issue with CPT. AMA disclaims responsibility for any errors in CPT that may arise as a result of CPT being used in conjunction with any software and/or hardware system that is not Year 2000 compliant. No fee schedules, basic unit, relative values or related listings are included in CPT. The AMA does not directly or indirectly practice medicine or dispense medical services. The responsibility for the content of this file/product is with CGS or the CMS and no endorsement by the AMA is intended or implied. The AMA disclaims responsibility for any consequences or liability attributable to or related to any use, non-use, or interpretation of information contained or not contained in this file/product. This Agreement will terminate upon notice if you violate its terms. The AMA is a third party beneficiary to this Agreement.

CMS Disclaimer

The scope of this license is determined by the AMA, the copyright holder. Any questions pertaining to the license or use of the CPT must be addressed to the AMA. End Users do not act for or on behalf of the CMS. CMS DISCLAIMS RESPONSIBILITY FOR ANY LIABILITY ATTRIBUTABLE TO END USER USE OF THE CPT. CMS WILL NOT BE LIABLE FOR ANY CLAIMS ATTRIBUTABLE TO ANY ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE INFORMATION OR MATERIAL CONTAINED ON THIS PAGE. In no event shall CMS be liable for direct, indirect, special, incidental, or consequential damages arising out of the use of such information or material.

This license will terminate upon notice to you if you violate the terms of this license. The AMA is a third party beneficiary to this license.

POINT AND CLICK LICENSE FOR USE OF “CURRENT DENTAL TERMINOLOGY”, (“CDT”)

End User License Agreement

These materials contain Current Dental Terminology, Fourth Edition (CDT), copyright © 2002, 2004 American Dental Association (ADA). All rights reserved. CDT is a trademark of the ADA.

THE LICENSE GRANTED HEREIN IS EXPRESSLY CONDITIONED UPON YOUR ACCEPTANCE OF ALL TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. BY CLICKING BELOW ON THE BUTTON LABELED “I ACCEPT”, YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO ALL TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.

IF YOU DO NOT AGREE WITH ALL TERMS AND CONDITIONS SET FORTH HEREIN, CLICK BELOW ON THE BUTTON LABELED “I DO NOT ACCEPT” AND EXIT FROM THIS COMPUTER SCREEN.

IF YOU ARE ACTING ON BEHALF OF AN ORGANIZATION, YOU REPRESENT THAT YOU ARE AUTHORIZED TO ACT ON BEHALF OF SUCH ORGANIZATION AND THAT YOUR ACCEPTANCE OF THE TERMS OF THIS AGREEMENT CREATES A LEGALLY ENFORCEABLE OBLIGATION OF THE ORGANIZATION. AS USED HEREIN, “YOU” AND “YOUR” REFER TO YOU AND ANY ORGANIZATION ON BEHALF OF WHICH YOU ARE ACTING.

  1. Subject to the terms and conditions contained in this Agreement, you, your employees, and agents are authorized to use CDT-4 only as contained in the following authorized materials and solely for internal use by yourself, employees and agents within your organization within the United States and its territories. Use of CDT-4 is limited to use in programs administered by Centers for Medicare & Medicaid Services (CMS). You agree to take all necessary steps to ensure that your employees and agents abide by the terms of this agreement. You acknowledge that the ADA holds all copyright, trademark and other rights in CDT-4. You shall not remove, alter, or obscure any ADA copyright notices or other proprietary rights notices included in the materials.
  2. Any use not authorized herein is prohibited, including by way of illustration and not by way of limitation, making copies of CDT-4 for resale and/or license, transferring copies of CDT-4 to any party not bound by this agreement, creating any modified or derivative work of CDT-4, or making any commercial use of CDT-4. License to use CDT-4 for any use not authorized herein must be obtained through the American Dental Association, 211 East Chicago Avenue, Chicago, IL 60611. Applications are available at the American Dental Association websiteExternal Website.
  3. Applicable Federal Acquisition Regulation Clauses (FARS)\Department of Defense Federal Acquisition Regulation Supplement (DFARS) Restrictions Apply to Government use. Please click here to see all U.S. Government Rights Provisions.
  4. ADA DISCLAIMER OF WARRANTIES AND LIABILITIES. CDT-4 is provided “as is” without warranty of any kind, either expressed or implied, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose. No fee schedules, basic unit, relative values or related listings are included in CDT-4. The ADA does not directly or indirectly practice medicine or dispense dental services. The sole responsibility for the software, including any CDT-4 and other content contained therein, is with (insert name of applicable entity) or the CMS; and no endorsement by the ADA is intended or implied. The ADA expressly disclaims responsibility for any consequences or liability attributable to or related to any use, non-use, or interpretation of information contained or not contained in this file/product. This Agreement will terminate upon notice to you if you violate the terms of this Agreement. The ADA is a third-party beneficiary to this Agreement.
  5. CMS DISCLAIMER. The scope of this license is determined by the ADA, the copyright holder. Any questions pertaining to the license or use of the CDT-4 should be addressed to the ADA. End users do not act for or on behalf of the CMS. CMS DISCLAIMS RESPONSIBILITY FOR ANY LIABILITY ATTRIBUTABLE TO END USER USE OF THE CDT-4. CMS WILL NOT BE LIABLE FOR ANY CLAIMS ATTRIBUTABLE TO ANY ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE INFORMATION OR MATERIAL COVERED BY THIS LICENSE. In no event shall CMS be liable for direct, indirect, special, incidental, or consequential damages arising out of the use of such information or material.

The license granted herein is expressly conditioned upon your acceptance of all terms and conditions contained in this agreement. If the foregoing terms and conditions are acceptable to you, please indicate your agreement by clicking below on the button labeled “I ACCEPT”. If you do not agree to the terms and conditions, you may not access or use the software. Instead, you must click below on the button labeled “I DO NOT ACCEPT” and exit from this computer screen.

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END ADDENDUM

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