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June 2011 Transit Cooperative Research Program Sponsored by the Federal Transit Administration Responsible Senior Program Officer: Gwen Chisholm Smith Legal Research Digest 37 Legal Arrangements for Use and Control of Real-Time Data This report was prepared under TCRP Project J-5, "Legal Aspects of Transit and Intermodal Transportation Programs," for which the Transportation Research Board is the agency coordinating the research. The report was prepared by Larry W. Thomas, Attorney-at-Law. James B. McDaniel, TRB Counsel for Legal Research Projects, was the principal investigator and content editor. The Problem and Its Solution (GPS) and similar technologies. Such data can be used to provide customers real-time arrival infor- The nation's 6,000 plus transit agencies need to have mation through personal computers, personal digital access to a program that can provide authoritatively assistants (PDAs), bus stop signs, and other means. researched, specific, limited-scope studies of legal is- Another set of uses are for performance measures. As sues and problems having national significance and used herein, the term "real-time data" means data be- application to their business. Some transit programs ing collected at the same time it is being generated, involve legal problems and issues that are not shared which may be disseminated immediately to patrons with other modes; as, for example, compliance with or others. transit-equipment and operations guidelines, FTA fi- Transit agencies increasingly are taking advantage nancing initiatives, private-sector programs, and labor of technological advancements in the collection and or environmental standards relating to transit opera- distribution of real-time data to provide up-to-date in- tions. Also, much of the information that is needed by formation to patrons. As transit agencies develop these transit attorneys to address legal concerns is scattered technologies, outside entities are asking for access to and fragmented. Consequently, it would be helpful to this data for a variety of purposes. Some transit agen- the transit lawyer to have well-resourced and well- cies allow subscribers to use their mobile telephones documented reports on specific legal topics available or PDA devices for access to real-time data. to the transit legal community. There are a range of possibilities for how transit The Legal Research Digests (LRDs) are developed agencies can own, license, and use real-time data. to assist transit attorneys in dealing with the myriad These range from completely exclusive use by the of initiatives and problems associated with transit agency to full rights for the public to access and use start-up and operations, as well as with day-to-day le- the data stream. But these issues raise even more gal work. The LRDs address such issues as eminent questions, such as appropriate models for data owner- domain, civil rights, constitutional rights, contract- ship and use; how real-time data will be controlled; ing, environmental concerns, labor, procurement, risk ownership rights and how aggressively an agency management, security, tort liability, and zoning. The should protect those rights; the legal requirements transit legal research, when conducted through the for the data to be made publicly available; the public TRB's legal studies process, either collects primary policy implications of using transit real-time data for data that generally are not available elsewhere or per- advertising purposes; and the application of freedom forms analysis of existing literature. of information requirements to real-time and related automatic vehicle location data. Applications This digest should help transit officials understand the legal options and limitations for real-time data Transit agencies rely more and more on computer- ownership, protection, and use. ized real-time data, using global positioning systems TRANSPORTATION RESEARCH BOARD OF THE NATIONAL ACADEMIES

CONTENTS (cont'd) CONTENTS Introduction, 3 VIII. Post-September 11 Security Issues and Public Access to Transit Real-Time Data, 36 I. Copyright Law and the Protection of Transit Agencies' Real-Time Data, 3 Conclusion, 38 A. Whether a Public Transit Agency May Hold a Copyright in Real-Time Appendix A: Discussion of Responses to Survey Questions, 40 Data, 3 B. Whether Real-Time Data Are Copyrightable as a Compilation or Appendix B: Transit Agencies Responding to the Survey, 49 Database, 4 Appendix C: Survey Questions, 51 C. Issues for Real-Time Data Under the Copyright Act, 6 D. Registration of Automatic Databases with Real-Time Data, 10 II. Copyright of Computer Programs for the Collection and Dissemination of Real-Time Data, 11 A. Applicability of the Copyright Act to Computer Programs, 11 B. Copyright of Audiovisual Programs, 11 C. Computer Programs and Compilations or Databases, 12 D. Copyright and Web Sites, 13 E. Copyright Protection and the Digital Millennium Copyright Act, 13 III. Protection for Real-Time Data Under State Law, 14 A. Preemption by the Copyright Act of Causes of Action Under State Law, 14 B. Tort of Misappropriation Under State Law, 16 IV. Whether a Transit Agency Has Proprietary Rights in Real- Time Data, 19 V. Contractual Issues and the Protection of Real-Time Data, 21 A. Use of Contracts, Licenses, and End-User Agreements, 21 B. Whether Copyright Law Preempts Provisions of Licenses or Other Agreements Seeking to Protect Noncopyrightable Data, 23 C. Transit Agencies' Survey Responses Regarding Laws and Contractual Issues, 24 VI. Protection of Real-Time Data Under Other Federal and State Laws, 26 A. Electronic Communications Privacy Act, 26 B. Computer Fraud and Abuse Act, 27 C. State Legislation Applicable to Electronic Communications or Stored Data, 28 D. Whether Real-Time Data Constitutes a Trade Secret, 28 E. Licensing of Real-Time Data and the Computer Information Transactions Act, 30 VII. Whether Government Transit Agencies May Be Required to Release Real-Time Data, 32 A. Federal FOIA Issues, 32 B. State Public Records Disclosure Laws, 32

3 LEGAL ARRANGEMENTS FOR USE AND CONTROL OF REAL-TIME DATA by Larry W. Thomas, Attorney-at-Law INTRODUCTION eral Copyright Act of 1976,5 or whether, alternatively, an agency would have a claim under state law for This digest addresses the legal implications of a someone's misappropriation of the agency's data. The transit agency's ownership and sharing of real-time digest discusses whether an agency may protect its data data. As a 2006 Transit Cooperative Research Program by a terms-of-use, end-user license or other agreement.6 Report discussing real-time data stated, "[t]he transit As will be discussed, it appears that protection for real- industry is in the midst of a revolution from being data time data is pursuant to contract and licensing law, not poor to data rich."1 As used herein, the term real-time the copyright laws. data means data that are being collected at the same The digest examines whether a transit agency may time they are being generated and that may be dis- have to disclose its real-time data pursuant to a public seminated immediately to patrons or others. records disclosure law, such as a freedom of information Transit agencies increasingly are taking advantage act (FOIA) or a freedom of information law (FOIL), even of technological advancements in the collection and dis- if the government paid for the technology needed to tribution of real-time data to provide up-to-date infor- collect real-time data. The digest considers whether a mation to patrons. Transit agencies are able to provide transit agency could refuse to provide its real-time data useful information through a number of distribution pursuant to a FOIA or FOIL request because of home- channels to enhance customer relations, such as their land security and antiterrorism or other public safety 2 own Web sites, as well as via Google Transit. In addi- concerns. Appendix A to the digest discusses the results tion, some transit agencies allow subscribers to use of a survey of transit providers regarding their collec- their mobile telephones or PDA devices for access to tion, use, and protection of real-time data, including real-time data. whether real-time data are being used to increase ad- As discussed in Appendix A, participating transit vertising revenue. Following the discussions of many of agencies report that customer relations have improved the issues covered by the digest, the author has in- as a result of providing information in real time. How- cluded a section entitled "Guidance" based on the im- ever, another use of real-time data is to improve transit mediately preceding text. management and performance.3 An automatic vehicle location (AVL) system is capable of capturing and ar- I. COPYRIGHT LAW AND THE PROTECTION OF chiving data that may be analyzed to improve transit 4 TRANSIT AGENCIES' REAL-TIME DATA practices. This digest discusses whether a transit agency has ownership rights in its real-time data and whether it may protect itself from someone copying, A. Whether a Public Transit Agency May Hold a using, or disseminating its real-time data. The digest Copyright in Real-Time Data addresses whether real-time data may be protected by Although the issue of whether data are copyrightable the law of intellectual property, in particular the Fed- is an important one, much of the American economy is based on "the creation and compilation of information" that are not copyrightable or are "only weakly protected by copyright."7 For transit agencies that are govern- 1 PETER G. FURTH, BRENDON HEMILY, THEO H.J. MULLER, & mental entities, a threshold issue is whether they may JAMES G. STRATHMAN, USING ARCHIVED AVLAPC DATA TO hold a copyright in their works or in works authored by IMPROVE TRANSIT PERFORMANCE AND MANAGEMENT 25 (Tran- others for the government. sit Cooperative Research Program, Transportation Research Board, TCRP Report No. 113, 2006), hereinafter cited as "TCRP Report 113," http://onlinepubs.trb.org/Onlinepubs/tcrp/ 5 Pub. L. No. 95-553, 90 Stat. 2541 (1976). tcrp_rpt_113.pdf, last accessed on Dec. 7, 2009. 6 See, e.g., Katleen Janssen & Jos Dumortier, The Protection 2 See Michael Perkins, It's here! Metro posts transit data of Maps and Spatial Databases in Europe and the United online, Greater, Greater Washington, weblog, http://greater States By Copyright and the Sui Generis Right, 24 J. greaterwashington.org/post.cgl?id+1845, Metro Involvement MARSHALL J. COMPUTER & INFO. L. 195, 196 (2006). with Google Held up by the Details, D.C. EXAMINER, Dec. 16, 7 Joel Rothstein Wolfson, Contract and Copyright Are Not at 2008, http://www.dcexaminer.com/local/Metro_involvement_ War: A Reply to "The Metamorphosis of Contract into Expand," with_Google_Transit_held_up_by_the_details12-16.html. 87 CAL. L. REV. 79, 86 (1999) (citing, e.g., Warren Publ'g Co. v. 3 TCRP Report 113, at 1. Microdos Data Corp., 115 F.3d 1509 (11th Cir. 1997)) (no copy- 4 Id. at 14­17 for more details regarding the operation of right protection for a factbook that was scanned and then sold AVL systems. as a CD-ROM in competition with Warren's paper publication).

4 1. Federal Agencies and Copyright eral court.16 Under 17 U.S.C. § 412, a registration made Federal agencies do not have copyright protection for within 3 months of first publication entitles the copy- any work created by the government; for example, the right holder to statutory damages for infringement dat- decennial census is not copyrightable.8 The government ing back to the work's creation. After a court has juris- may hold a copyright in a work transferred to the gov- diction of an action for copyright infringement, the ernment,9 but the government may not copyright a work court may grant injunctive relief to restrain infringe- 10 prepared by a federal employee. A work is copyright- ment of any copyright, whether registered or unregis- able when commissioned by the government but written tered.17 by an independent contractor.11 As will be discussed, the closest analogy in copyright law to real-time data is a database, which may have 18 2. State Agencies and Copyright some limited copyright protection as a compilation. Although the courts have construed the term "compila- As for state or local governmental agencies, the tion" broadly,19 pure data are not copyrightable. Only Copyright Act does not preclude a state employee's the selection and arrangement of a compilation are work from being copyrightable. Whether a state or local copyrightable.20 Thus, although data are not copyright- agency may copyright a work is a matter of state law. able, a compilation of data having some originality is Some state laws "explicitly recognize the authority of 21 subject to the copyright laws. public officials or agencies to copyright specific public Under Section 101 of the Copyright Act, although records that they have created."12 At least 28 states facts, ideas, and concepts are not copyrightable, "a claim the right to copyright, "and state copyright claims `compilation' is a work formed by the collection and as- are routinely made for some categories of state 13 sembling of preexisting materials or of data that are data...." As the Second Circuit has held, "states and selected, coordinated, or arranged in such a way that their subdivisions are not excluded from protection un- the resulting work as a whole constitutes an original der the [Copyright] Act."14 In sum, the majority rule 22 work of authorship." There are three requirements for appears to be that, unless prohibited by state law, state a compilation under the copyright laws: "(1) the collec- and local agencies may seek copyright protection for tion and assembly of preexisting data; (2) the selection, their works. coordination, or arrangement of that data; and (3) a resulting work that is original, by virtue of the selec- B. Whether Real-Time Data Are Copyrightable as tion, coordination, or arrangement of the data contained a Compilation or Database in the work."23 Under Section 102(a) of the Copyright Act, At the present time, based on decisions by the "[c]opyright protection subsists...in original works of United States Supreme Court and lower federal courts, authorship fixed in any tangible medium of expression, it does not appear that real-time data may be copy- now known or later developed, from which they can be righted. There is some copyright protection for a data- perceived, reproduced, or otherwise communicated, ei- ther directly or with the aid of a machine or device." 16 Murray Hill Publ'ns, Inc. v. ABC Communs., Inc., 264 Therefore, an original work is protected by copyright F.3d 622, 630 (6th Cir. 2001); see also N.Y. Mercantile Exch., law from the moment it is "first embodied in a tangible Inc. v. IntercontinentalExchange, Inc, 389 F. Supp. 2d 527, 539 medium" and even "subsists" prior to a copyright regis- n.9 (S.D.N.Y. 2005) (citing 17 U.S.C. § 411(a)). 15 tration. An author has a copyright in his or her works 17 See, e.g., Olan Mills, Inc. v. Linn Photo Co., 23 F.3d 1345, regardless of whether the work has been registered 1349 (8th Cir. 1994); Pac. & S. Co., Inc. v. Duncan, 744 F.2d with the Copyright Office. The registration requirement 1490, 1499 n.17 (11th Cir. 1984). under 17 U.S.C. § 411(b) is a jurisdictional prerequisite 18 "Databases, or `compilations,' have been protected by to copyright-holder's right to enforce a copyright in fed- copyright since 1790, when the first U.S. Copyright Act was enacted." Executive Summary (on legal protection for databases), Copyright Office, available at: http://www.copyright.gov/ 8 reports/execsum2.pdf. Robert Gellman, Twin Evils: Government Copyright and 19 MELVILLE B. NIMMER & DAVID NIMMER, 1 NIMMER ON Copyright-Like Controls over Government Information, 45 COPYRIGHT § 1.08[B] at 1-107, Mathew Bender, Mar. 6, 1997. SYRACUSE L. REV. 999, 1003 (1995). 20 9 Id. § 3.04[B][3][c] at 3-34.26. 17 U.S.C. § 105 (2009). 21 10 Id. § 3.02, at 3-5 (stating also that a compilation that "in- Id. §§ 101, 105 (2009). 11 corporates pre-existing `materials' or `data' that may or may See ROBERT A. GORMAN, COPYRIGHT LAW 52 (2d ed. 2006), not be capable of being protected by copyright" may be pro- pdf version available at http://www.fjc.gov/public/ tected by copyright). pdf.nsf/lookup/copyright.pdf/$file/copyright.pdf. 22 12 17 U.S.C. § 101; Lars S. Smith, RFID and Other Embed- County of Santa Clara, 170 Cal. App. 4th 1301, 1331, 89 ded Technologies: Who Owns the Data?, 22 SANTA CLARA Cal. Rptr. 3d 374, 397 (citation omitted). COMPUTER & HIGH TECH. L.J. 695, 707 (2006), hereinafter 13 Gellman, supra note 8, at 1027 (footnote omitted). cited as "Lars Smith" (citing 17 U.S.C. § 101 (definition of com- 14 County of Suffolk, N.Y. v. First Am. Real Estate Solu- pilation)). tions, 261 F.3d 179, 187 (2d Cir. 2001) (citation omitted). 23 KEY PUBL'NS, INC. V. CHINATOWN TODAY PUB. ENTERS., 15 17 U.S.C. § 102 (2009). INC., 945 F.2d 509, 512 (2d Cir. 1991) (citation omitted).

5 base as a compilation if it satisfies the test of originality Guidance Number 1 within the meaning of the Copyright Act. As for how Pure data are not copyrightable. If there is some much originality is required, the U.S. Supreme Court originality, even though slight, in the selection and ar- addressed the issue in Feist Publications, Inc. v. Rural rangement of data, then a database may be an original Tel. Serv. Co.24 Although a telephone directory is a com- work that is copyrightable as a compilation. However, pilation, the Court held in Feist that a telephone direc- there is no copyright protection for the underlying data, tory is not protected by copyright law. The respondent which may be extracted freely and copied and distrib- Rural Telephone Service Co. had published a typical uted by anyone without infringing the copyright for the telephone directory of white and yellow pages distrib- compilation. uted free of charge to its subscribers. When Rural Tele- phone refused to license its listings to Feist Publica- Relevant to the issue of the copyrightability of a tions, Feist used Rural Telephone's listings anyway. In transit agency's real-time data is that data selection for holding that Rural Telephone's directory was not pro- a compilation must involve an exercise of judgment in tected by copyright as a compilation, the Supreme deciding what to include in the compilation.33 If a compi- Court reiterated a fundamental principle in copyright lation "uses a standard set of selection criteria, then the law: "facts are not copyrightable."25 34 compilation is not copyrightable." For example, an Some compilations are copyrightable but only if they article discussing the use by manufacturers of radio satisfy the test of originality within the meaning of the frequency identification (RFID) tags to track a manu- Copyright Act. In Feist, the Court held that although facturer's products after sale concludes that "if the tag "`no one may claim originality as to facts,'"26 a factual is tracking everywhere the item has been, ...then likely compilation could meet the originality test "if it features the compilation will not be held to be copyrightable."35 an original selection or arrangement."27 Nevertheless, More to the point is that in 2007 the Second Circuit the "copyright in a factual compilation is thin."28 The affirmed a district court's decision in New York holding Court rejected a test that had been used by lower courts that real-time data are not subject to the protection of that had held "that copyright was a reward for the hard the copyright laws. In N.Y. Mercantile Exch., Inc. v. work that went into compiling facts"--the "sweat of the IntercontinentalExchange, Inc.,36 the New York Mercan- brow" or "industrious collection" test.29 Because Rural tile Exchange (NYMEX) brought an action against In- Telephone's white pages did not meet the test of origi- tercontinentalExchange, Inc. (ICE) for copyright in- nality, Feist's use of Rural Telephone's information was fringement under the 1976 Copyright Act and for not copyright infringement. trademark infringement under the trademark laws of In Feist, the Court explained what is meant by the the United States, as well as for violations of New York term "originality" within the meaning of the copyright law.37 At issue was daily real-time data used in the pric- laws. ing of commodity futures contracts for natural gas and Original...means only that the work was independently light sweet crude oil.38 The changes in the value of con- created by the author (as opposed to copied from other tracts "are determined by reference to the end-of-day works), and that it possesses at least some minimal de- `settlement prices' for the futures contracts."39 As dis- gree of creativity....To be sure, the requisite level of crea- cussed in Section I.C.8, infra, the Copyright Office was tivity is extremely low; even a slight amount will suf- willing to register NYMEX's copyright in its database of fice....Originality does not signify novelty; a work may be daily settlement prices but refused to register the daily original even though it closely resembles other works so settlement prices themselves. long as the similarity is fortuitous, not the result of copy- 30 NYMEX and ICE disputed how the settlement prices ing. (emphasis added) were determined. According to NYMEX, it uses a Set- Although the Court stated that "even a slight tlement Price Committee (SPC) to assist in the deter- 31 amount [of originality] will suffice," the Court held mination of the prices "pursuant to NYMEX's rules, that the selection, coordination, and arrangement of Rural's white pages did not warrant copyright protec- 33 tion.32 Key Publ'ns, Inc., 945 F.2d at 513 (2d Cir. 1991) (citation omitted). 34 Smith, supra note 22, at 713 (2006); Financial Informa- tion, Inc. v. Moody's Investors Serv., Inc., 808 F.2d 204, 208 (2d Cir. 1986) (agreeing with the district court that there was "in- 24 sufficient proof of `independent creation' to render...Daily Bond 499 U.S. 340, 111 S. Ct. 1282, 113 L. Ed. 2d 358 (1991). 25 Cards copyrightable [when] [t]he researchers had five facts to Id. at 344. fill in on each card--nothing more and nothing less"). 26 Id. at 347 (citation omitted). 35 Id. at 713. 27 Id. at 348 (citation omitted). 36 389 F. Supp. 2d 527 (S.D.N.Y. 2005). 28 Id. at 349. 37 Id. Because the court had granted a summary judgment 29 Id. at 352. for ICE dismissing the federal claims, the court declined to 30 Id. at 345 (citations omitted). exercise jurisdiction of the claims asserted under state law. 31 38 Id. Id. at 530. 32 39 Id. at 362. Id. (citations omitted).

6 through a process that reflects creativity and the exer- prices.50 The court explained, first, that there is no cise of judgment."40 At the close of each day of trading, copyright protection for ideas because such protection NYMEX's subcommittees "determine the appropriate would impede the advancement of knowledge and learn- price for the delivery of crude oil for each of the next 32 ing.51 or 33 months and for delivery of natural gas for each of Second, invoking the doctrine of merger in copyright the next 72."41 law, discussed infra, the court held that there is no pro- ICE, on the other hand, contended that NYMEX de- tection under the copyright laws for a work when termined prices with a "back office" computer pro- "`there is only one or so few ways of expressing an idea gram.42 It is not clear from the district and appellate that protection of the expression would effectively ac- courts' opinions how much of the NYMEX committees' cord protection to the idea itself.'"52 NYMEX could avoid judgment was involved in determining the prices, par- summary judgment only if it could "demonstrate that ticularly for the contracts for the low-volume or more the range of possible settlement prices is broad enough distant or "outer" months.43 In any event, NYMEX dis- that any possible expression will not necessarily be sub- seminates its settlement prices through licensed market stantially similar,"53 a showing that the court held that data vendors in accordance with a Market Data Agree- NYMEX had not made.54 Accordingly, the court applied 44 ment (MDA). NYMEX's MDA applied to three catego- the doctrine of merger and held "that, in using the set- ries of data, some of which was distributed within 30 tlement prices, ICE `took nothing more than ideas, for minutes. For example, "[i]ntermittent Real Time which the copyright law affords no protection to the NYMEX Market Data" was "redistributed more than author.'"55 two minutes but less than thirty minutes" after a ven- dor's receipt of the data.45 Guidance Number 2 NYMEX alleged that ICE "unlawfully reproduced" Real-time data are not copyrightable. A database that and transmitted NYMEX's settlement prices, thus free- meets the test of originality may be copyrightable as a riding on "NYMEX settlement prices, reputation, and compilation, but the underlying data would not be pro- 46 goodwill each day." In ruling in favor of ICE, the dis- tected by the copyright laws. A database produced auto- trict court held, first, that there is no copyright protec- matically by a computer program also may not be copy- tion for an idea, fact, procedure, process, system, or rightable because there would be no exercise of method of operation.47 Second, the district court held judgment and discretion in choosing which data to in- that, regardless of NYMEX's assertion that the settle- clude in a compilation of data. A second issue for real- ment prices are the result judgment and creativity, time data and the copyrightability of a database is that "there is plainly only one settlement price...."48 there are so few ways to express the data that all ex- In affirming the district court, the Second Circuit pressions would be substantially the same. Thus, any stated that it was "a close question" whether NYMEX's attempted copyright would violate the doctrine of committees' daily determinations satisfied the original- merger. ity test required by the Copyright Act. Thus, the court declined to decide whether settlement prices are origi- C. Issues for Real-Time Data Under the Copyright nal.49 The Second Circuit held, however, that even if Act NYMEX's real-time settlement prices are created, not As for whether a transit agency's real-time data are simply discovered, there was still no violation of subject to the protection of the copyright laws, a num- NYMEX's copyright in its database of settlement ber of issues are presented under the Copyright Act, including those identified in the Feist and NYMEX 40 Id. at 531 (citations omitted). cases. 41 NYMEX, 497 F.3d 109, 112 (2d Cir. 2006) (footnote omit- ted). 1. Fixed in a Tangible Medium of Expression 42 NYMEX, 389 F. Supp. 2d at 531. One issue is whether real-time data "is `fixed' in a 43 NYMEX, 497 F.3d at 111. tangible medium of expression."56 Assuming other pre- 44 NYMEX, 389 F. Supp. 2d at 532 (citation omitted). requisites are satisfied, a writing that is in a fixed form, 45 Id. (citations omitted). The court noted that "[t]he MDA including an electronic form, is protected by the copy- states that GlobalView `will not furnish Real Time or Intermit- right laws.57 Under § 101 of the Copyright Act, tent Real Time NYMEX Market Data to any of its Subscribers until a Uniform Subscriber Addendum...has been executed by 50 Id. at 116 (footnote omitted). the Subscriber and returned to Vendor.'" Id. 51 46 Id. at 118 (citation omitted). Id. at 533 (citation omitted). 52 47 Id. at 116­17 (citation omitted). Id. at 541 (citation omitted). 53 48 Id. at 117 (citation omitted) (internal quotation marks Id. at 541­42. It may be noted that ICE did "not engage in omitted). wholesale copying and sale of NYMEX settlement prices, but 54 rather, use[d] NYMEX settlement prices solely as the estab- Id. at 118. 55 lished benchmarks in the energy trading industry to facilitate Id. (citation omitted). 56 the clearing of its own OTC swaps." Id. at 543. 17 U.S.C. § 102(a) (2009). 49 57 NYMEX, 497 F.3d at 115. Smith, supra note 22, at 706 (2006).

7 [A] work is "fixed" in a tangible medium of expression or expression of the fact is there an author.67 when its embodiment in a copy or phonorecord, by or un- After a system is designed and implemented to cap- der the authority of the author, is sufficiently permanent ture a transit agency's real-time data, it appears that or stable to permit it to be perceived, reproduced, or other- the data would be collected "without the slightest ele- wise communicated for a period of more than transitory ment of creativity,"68 a feature of real-time data indicat- duration. A work consisting of sounds, images, or both, that are being transmitted, is "fixed" for purposes of this ing that it would not have an author or be an original title if a fixation of the work is being made simultane- work of authorship as required under the copyright ously with its transmission. (emphasis supplied). laws. If a process for the selection of data is "too rote and mechanical," a compilation is not subject to the The Copyright Act's "tangible medium of expression" copyright laws.69 Under § 101, the term "[s]election im- requirement is "satisfied if the work as fixed can be plies the exercise of judgment in choosing which facts perceived `either directly or with the aid of a machine or 70 58 from a given body of data to include in a compilation." other devices.'" Also relevant is that under § 101, the term Real-time data appear to satisfy the requirement of "[a]rrangement `refers to the ordering or grouping of being fixed in a tangible medium of expression, because data into lists or categories that go beyond the mere it is possible to perceive, reproduce, or communicate the mechanical grouping of data as such, for example, the data with the aid of a machine or device.59 According to alphabetical, chronological, or sequential listings of one authority, however, "a reproduction captured mo- data.'"71 According to Patry on Copyright, the copy- mentarily in the memory of a computer" is not a work 60 rightability of a database is "problematic," because the fixed in a tangible medium of expression. arrangement and location of data for the most part is 2. Original Work of Authorship "meaningless," and retrieval is accomplished "by means of a complementary computer program in which the Another issue is whether the collection of real-time only creativity lies."72 data has an author within the meaning of the Copyright In any event, no case was located for the digest that Act. Section 102 of the Copyright Act requires that a holds that real-time data are an original work of au- work of authorship be an "original" work. Furthermore, thorship that may be copyrighted. originality is "the essence of authorship" that requires a "modicum of intellectual labor" by an author.61 Only an Guidance Number 3 author of an original work is entitled to copyright pro- It appears that real-time data may satisfy the Copy- tection.62 Among the works of authorship referenced in § right Act's requirement that a work be fixed in a tangi- 102 are "literary works" and "audiovisual works,"63 ble medium of expression. However, there may be an terms that apply to compilations, including electronic issue whether real-time data has an author in the sense ones or databases. Even if data are not copyrightable, that the data are created with the required degree, al- data come within the subject matter or scope of the beit minimal, of intellectual creativity needed to satisfy Copyright Act. the copyright laws. To the extent that a system merely In NYMEX, although the Second Circuit did not de- discovers facts, i.e., data, the Copyright Act's au- cide the originality of the settlement prices, the court thor/originality test is not fulfilled. recognized that originality requires some independent, although "minimal," creativity.64 The court stated that "there is a strong argument that...NYMEX does not `author' the settlement prices as the term is used in copyright law."65 The court regarded the settlement prices as "an empirical reality, an economic fact about 67 Id. at 114. Although not deciding whether determinations the world[] that Committee members are seeking to of settlement prices met the test for originality, the court noted discover."66 A discoverer of a fact is not an author; only if that it was disputable whether settlement prices for high vol- there is some originality in the manner of the reporting ume markets amounted to the discovery of facts not subject to copyright protection. Id. 68 Southco, Inc. v. Kanebridge Corp., 390 F.3d 276, 282 (3d Cir. 2002). 58 69 1 NIMMER ON COPYRIGHT, supra note 19, § 2.03[B][1], at Mid Am. Title Co. v. Kirk, 59 F.3d 719, 722 (7th Cir. 1995). 2-32. See, however, Data General Corp. v. Grumman Sys. Support 59 17 U.S.C. § 102 (2009). Corp., 834 F. Supp. 477 (D. Mass. 1992) (holding that computer 60 software product called "ADEX" was protected by copyright 1 NIMMER ON COPYRIGHT, supra note 19, § 2.03[B][2], at laws, even though product, as distributed, was machine- 2-34 (citation omitted) (internal quotation marks omitted). 61 generated compilation of object code). Id. § 1.06[A], at 1-104 (emphasis in original). 70 62 Key Publ'ns, Inc. v. Chinatown Today, 945 F.2d 509, 513 Id. at 1-103. (2d Cir. 1991) (citation omitted). 63 17 U.S.C. §§ 102(a)(1) and (6) (2009). 71 Id. (citing Copyright Office, Guidelines for Registration of 64 NYMEX, 497 F.3d at 113 (citation omitted). Fact-Based Compilations 1 (rev. Oct. 11, 1989)). 65 Id. at 114 (citation omitted) (footnote omitted). 72 WILLIAM F. PATRY, 2 PATRY ON COPYRIGHT, § 3-69, at 3- 66 Id. at 115. 220 (2010).

8 3. Whether Facts, Ideas and Processes Are respect to the copyrightability of a computer program Copyrightable for the collection, display, or dissemination of real-time data. Whether and to what extent a computer program In a case involving the alleged infringement of a is protected by the copyright laws depends on whether compilation, the Second Circuit stated that "`the law of the program is an expression of an idea or is the idea copyrights defies the laws of logic...since it `affords to itself. The expression of an idea in a computer program the summation of one hundred or one million [individ- is copyrightable, but the idea is not copyrightable. It is ual facts and their unadorned expression] a significant difficult, however, to articulate the difference between measure of protection' while affording none to the facts an idea and the expression of an idea.79 themselves....'"73 Copyright protection does not "extend In sum, when there is only one way to express the to any idea, procedure, process, system, method of op- idea, idea and expression merge, meaning there is no eration, concept, principle, or discovery, regardless of 80 copyrightable material. The reason for the rule is that the form in which it is described, explained, illustrated, if it were possible to copyright expression, the result or embodied in such work."74 Thus, facts, ideas, and would be a monopoly of the idea.81 processes are not copyrightable. As seen in the Supreme Court's decision in Feist, 5. Copyrightability When Expression Is Dictated by facts have "limited copyright coverage," because "there Industry Practice are only a limited number of ways to express factual material...."75 Even if a transit agency has taken action A related issue is that the requirements or practices to make its real-time data a unique database in that the of the transit industry may dictate how real-time data selection and arrangement of the data are original, the are expressed or displayed and render the data non- copyright laws do not prevent the extraction of unpro- copyrightable for that reason as well. In Maddog Soft- 82 tected data from an otherwise protected database. In- ware Inc. v. Sklader, Sklader, a former employee of deed, "[t]he more comprehensive a data collection be- Maddog Software, Inc., designed a computer program comes, the harder it is to protect it via copyright."76 known as FastFreight to assist Maddog with dispatch and billing functions relating to intermodal trucking, 4. Doctrine of Merger for which Maddog registered a copyright. The program In NYMEX, the Second Circuit applied the doctrine permitted the entry of data on different forms that had of merger in ruling that NYMEX had no copyright pro- been "designed to accommodate the standard practices tection for its real-time settlement prices, because the of the industry."83 After leaving Maddog's employment, settlement prices were the only way of expressing the Sklader designed and sold a software package known as idea of the price. When there is no other way to express IMX that used forms that looked identical to those of an idea, a work is not copyrightable because of the doc- FastFreight.84 Maddog's problem in establishing copy- trine of merger. right infringement was that, because of the needs of the industry, the forms were the only possible expression of The doctrine of merger, a necessary corollary to the non- the idea. copyrightability of ideas, holds that "when there is essen- tially only one way to express an idea, the idea and its The expression of an idea is not copyrightable if the expression are inseparable and copyright is no bar to expression of the idea is dictated by industry practice. copying that expression." ...The related doctrine of scenes Thus, to the extent that the form of expression or dis- a faire denies copyright protection to "unoriginal elements play of real-time data, such as arrival and departure flowing from the undisputed standard and inherent char- information, is set by industry practice, the data may 77 acteristics" of a common idea. not be copyrightable for that reason as well. Similarly, NYMEX was unable to show that "the range of pos- with respect to computer programs, it has been held sible settlement prices is broad enough" to permit other that if there are "external factors," such as market or expressions of the prices that would not be "substan- industry demands, requiring, for example, that all com- tially similar."78 puter programs display specific words on a computer The doctrine of merger is a potential issue also with screen, "the components of that program that provide 85 such a function are not protected by copyright laws." 73 Key Publ'ns, Inc., 945 F.2d at 512 (quoting Robert C. Denicola, Copyright in Collections of Facts: A Theory for the 79 Protection of Nonfiction Literary Works, 81 COLUM. L. REV. Apple Computer, Inc. v. Franklin Computer Corp., 714 516, 527 (1981)). F.2d 1240, 1253 (3d Cir. 1983) (citations omitted). 80 74 17 U.S.C. § 102(b) (2009). M. Kramer Manuf. Co. v. Andrews, 783 F.2d 421, 436 (4th 75 Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d Cir. 1986). 81 1222, 1236 (3d Cir. 1986). Compaq Computer Corp. v. Procomm Tech., 908 F. Supp. 76 1 NIMMER ON COPYRIGHT, supra note 19, § 3.04[B][2][b], 1409, 1418­19 (S.D. Tex.) (citation omitted). 82 at 3-33. 382 F. Supp. 2d 268 (D.N.H. 2005). 83 77 Maddog Software Inc., v. Skladder, 382 F. Supp. 2d 268, Id. at 272. 84 278 (D.N.H. 2005) (citation omitted) (footnote omitted). Id. at 274. 78 85 NYMEX, 497 F.3d at 117 (citation omitted) (internal quo- Cognotec Servs., Ltd. v. Morgan Guar. Trust Co. of N.Y., tation marks omitted). 862 F. Supp. 45, 49 (S.D.N.Y. 1994).

9 6. Noncopyrightability of Numbers, Short Words, and trine.94 Phrases Guidance Number 4 Another issue for real-time data is that, just as indi- Several rules of copyright law appear to preclude the vidual facts may not be copyrighted,86 numbers, short copyrighting of real-time data. When there is only one words and phrases, and even the titles of works are not 87 way to express an idea, or when the ways of expressing copyrightable. The Copyright Office, to which the an idea are substantially the same, a work is not copy- courts tend to defer, has a "long-standing practice...to rightable because of the doctrine of merger. Moreover, deny copyright protection to words and short phrases, when the expression of an idea is determined by indus- ...because they do not "constitute copyrightable subject try needs or practice, the copyrightability of a work may matter."88 The courts have held that there is no copy- be precluded. Just as facts and data are not copyright- right protection for "naked numbers."89 Moreover, the able, numbers, short words, and phrases such as are Sixth Circuit has held that a catalog with part num- used to express real-time data would not be copyright- bers, as well as illustrations, not only lacked sufficient able. Even if data are copyrighted as a compilation, the originality for copyright protection but also that the underlying data may be extracted without violating the classification scheme was an idea that was not copy- 90 copyright laws. rightable under § 102(b). The lack of copyright protection for numbers and 8. Whether Predictive Real-Time Data Are short phrases is relevant to the issue of whether real- Copyrightable time data are copyrightable. As observed in the NYMEX case, copyright protection does not extend to Although the issue was present in the NYMEX case, numbers: "`The mere fact that numbers are attached the district and appellate courts did not decide whether to[] or are a by-product of categories and descriptions real-time data of a predictive nature may be protected that are copyrightable does not render the numbers by copyright. In NYMEX, the Second Circuit implied themselves copyrightable.'" 91 that NYMEX had a stronger copyright argument for the settlement prices that were determined for the outer or 7. Fair Use more distant months because the committees' work was 95 A copyrighted work is subject to the "fair use" doc- more akin to making "predictions." On the other hand, trine. Thus, if another party copies part of a copy- in a footnote, the court stated that "[w]hile there is a righted database, there may be no basis for a copyright strong argument NYMEX did not independently create infringement claim. The fair use doctrine depends in the settlement prices," the court had not considered part on the purpose and character of the use, such as "the extent of NYMEX's creativity."96 The court did not whether the use was for a commercial or a nonprofit address whether the settlement prices for the more dis- educational purpose. The copying of a copyrighted work tant, outer months could be copyrighted even if the set- purely for a commercial use is a factor that militates tlement prices for the more recent, higher-volume against a finding of fair use.92 Other factors that are months could not be copyrighted. considered in deciding whether copying is a fair use are To the extent that an agency's real-time data may be the nature of the copyrighted work, the amount of the used to make predictions, there may be an argument copying of the work, and how the use affects the market that such predictions are not the same as the discovery 93 for or the value of a copyrighted work. If part of an of facts, which are not copyrightable. A concurring opin- unpublished work is copied, the absence of publishing is ion in NYMEX cited CCC Information Services, Inc. v. an important but not necessarily a determinative factor Maclean Hunter Market Reports,97 in which the Second in whether the copying is permitted the fair use doc- Circuit held that a compilation of projections of used car prices merited copyright protection. The majority opin- ion in NYMEX, however, distinguished CCC Informa- tion Services, because in that case it was not necessary for the court to decide whether the estimates were 86 Feist, 499 U.S. at 340, 344. copyrightable. The compilation was copyrightable based 87 Melville B. Nimmer & David Nimmer, 2 NIMMER ON on its selection and arrangement of the estimates.98 Ac- COPYRIGHT § 7.26; Southco, Inc. v. Kanebridge Corp., 390 F.3d cording to the court, unlike NYMEX's settlement prices 276, 285­87 (3d Cir. 2004). 88 NYMEX, 389 F. Supp. 2d at 543­44 (citations omitted) 94 Harper & Row Publishers, Inc. v. Nation Enters., 471 (footnote omitted). U.S. 539, 554, 105 S. Ct. 2218, 2227, 85 L. Ed. 2d 588, 603 89 1 NIMMER ON COPYRIGHT, supra note 19, § 3.04[B][2][c], at (1985). 3-34.4(1). 95 NYMEX, 497 F.3d at 116. 90 ATC Distribution Group, Inc. v. Whatever It Takes 96 Id. at 115 n.4. Transmissions & Parts, Inc., 402 F.3d 700, 705­06 (6th Cir. 97 44 F.3d 61 (2d Cir. 1994). See also CDN Inc. v. Kapes, 197 2005). F.3d 1256 (9th Cir. 1999); Justin Hughes, Created Facts and 91 NYMEX, 389 F. Supp. 2d at 541­42 (citation omitted). the Flawed Ontology of Copyright Law, 83 NOTRE DAME L. REV. 92 Compaq Computer Corp., 908 F. Supp. at 1419. 43 (2007). 93 98 Id. (citing 17 U.S.C. § 107). NYMEX, 497 F.3d at 115 n.5 (citation omitted).

10 that were factual statements of daily market value, in a regulation allowing group registration for both pub- CCC Information Services the editors "created" the used lished and unpublished automated databases. The regu- car prices based on the editors' assumptions about the lation allows 3 months' worth of updates to be regis- prices for "average cars" for which there was "no actual tered at one time, with a deposit consisting of market to discover."99 identifying material from one representative day.106 An Possibly there is an argument that real-time data "`automated database' [is] a body of facts, data, or other used to predict future events are not discoveries of ex- information assembled into an organized format, suit- isting facts as were NYMEX's settlement prices and able for use in a computer and comprising one or more thus are subject to copyright protection. Nevertheless, files."107 The report explains that "[o]ne of the major is- even if a transit agency could register and update real- sues posed by automated databases is the status of on- 108 time data as an automatic database, discussed below, it going updates or other changes." However, "[t]o the is not clear that it would be practical or beneficial to do extent that each update of a database contains copy- so. As one transit agency stated when responding to the rightable subject matter, it may be registered. Each survey, a transit agency's real-time data are "ephem- registration for a published, updated database covers eral." only the additions that were published on the date specified in the application as the date of publication D. Registration of Automatic Databases with (emphasis supplied)."109 Real-Time Data Accordingly, the Copyright Office's regulations pro- NYMEX was unable to register a copyright in its vide 100 real-time data, its settlement prices. What NYMEX that, on the basis of a single application, deposit, and fil- obtained was a copyright solely in its database. If a da- ing fee, a single registration may be made for automated tabase is registered with the Copyright Office, it is pos- databases and their updates or other derivative versions sible to register updates to the database. Electronic that are original works of authorship, if, where a data- base (or updates or other revisions thereof), if unpub- databases come within the category of literary works, lished, is (or are) fixed, or if published is (or are) pub- but they are copyrightable, if at all, only as compila- lished only in the form of machine-readable copies.... 110 tions;101 for example, a database that is arranged merely alphabetically or chronologically will not be sufficiently One of the seven conditions that must be met is that original.102 As Patry on Copyright states, registering a each update must be made within 3 months of the filing copyright in a database is "very problematical."103 For 106 example, it may be impossible to separate the idea of U.S. COPYRIGHT OFFICE, REPORT ON LEGAL PROTECTION the database from its expression.104 Moreover, a data- FOR DATABASES (1997) (available at http://www.copyright.gov/ base may lack any selection or arrangement needed to reports/dbase.html), last accessed on Dec. 23, 2009. The Copy- right Office's Circular 65, Copyright Registration for Auto- meet the originality test, with the data being searchable mated Databases, explains the process and requirements for and retrievable by an off-the-shelf computer program.105 database registration. Section 408 of the Copyright Act requires copyright 107 Id. holders to deposit material in connection with their 108 Id. applications for copyright registration. Subsection 408 109 (c)(1) permits registration of classes of work, one of Id. The report explains that "Automated databases may be updated frequently; it is not unusual for a database to be which may be for "a single registration for a group of updated several times a day. Database producers on many related works." According to its Report on Legal Protec- occasions informed the Office that it was impossible as a prac- tion for Databases, in 1989 the Copyright Office adopted tical matter to register and deposit the "new" work each time revisions were made available to the public." Id. 110 99 Id. 37 C.F.R. § 202.3 (2009). The requirements are: 100 In the NYMEX case, NYMEX first "sought a copyright for (A) All of the updates or other revisions are owned by the same copyright claimant; its database including the settlement prices. After the Copy- (B) All of the updates or other revisions have the same gen- right Office informed NYMEX that it was unwilling to provide eral title; a copyright in its settlement prices, NYMEX filed a replace- (C) All of the updates or other revisions are similar in their ment application and obtained a copyright for its database general content, including their subject; only." Id. at 112. The United States filed an amicus brief in (D) All of the updates or other revisions are similar in their NYMEX in which the government argued that "the settlement organization; prices are facts," and "even if they are not facts the idea of the (E) Each of the updates or other revisions as a whole, if pub- prices [has] merged with the expression" such that the prices lished before March 1, 1989, bears a statutory copyright notice are not copyrightable. The government also contended that as first published and the name of the owner of copyright in settlement "prices are not copyrightable because they are short each work (or an abbreviation by which the name can be recog- phrases." Id. at 113. nized, or a generally known alternative designation of the 101 PATRY, supra note 72, § 3:69, at 3-220. owner) was the same in each notice; 102 Id. § 3:67, at 3-216. (F) Each of the updates or other revisions if published was 103 first published, or if unpublished was first created, within a Id. § 3:69, at 3-224. three-month period in a single calendar year; and 104 Id. (G) The deposit accompanying the application complies with 105 Id. § 202.20(c)(2)(vii)(D).

Next: Chapter 2: COPYRIGHT OF COMPUTER PROGRAMS FOR THE COLLECTION AND DISSEMINATION OF REAL-TIME DATA »
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TRB’s Transit Cooperative Research Program (TCRP) Legal Research Results Digest 37: Legal Arrangements for Use and Control of Real-Time Data is designed to help transit officials understand the legal options and limitations for real-time data ownership, protection, and use.

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