A Guidebook for Developing and Sharing Transit Bus Maintenance Practices (2005)

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A-1 APPENDIX A Legal Considerations This appendix supplements the material included in Chap- ter 2 of the Guidebook by detailing the legal issues present when developing maintenance practices, particularly intel- lectual property. The detail provided here is intended pri- marily for an agency’s legal representative. This appendix includes how intellectual property is created and protected and how to claim your own work as intellectual property. The appendix also discusses consequences for not complying with legal requirements and provides examples of clauses and statements as a starting point for drafting your own dis- claimers that can help prevent any legal troubles. INTRODUCTION The rights and responsibilities for sharing information are very broad and complex. This appendix should be relied upon for informational purposes only as a “springboard” for a legal discussion with the attorney representing your agency. It cannot take the place of a licensed and competent attorney who is familiar with the particular laws of your jurisdiction and the particular laws, rules, policies, and guidelines that govern behavior within the scope of your duties. No attorney-client relationship is created between the reader and the law firm that was consulted for this project or the firm’s principals, employees, affiliates, or assigns. The attorney responsible for your agency will ultimately know the legal issues involved with developing and sharing maintenance practices. Those issues may include: • “Sovereign immunity,” which is the privilege against lawsuits that a government or entity acting on behalf of the government (e.g., contractor or municipality) enjoys; • Environmental regulations; • Workplace and employee safety; • Insurance, including workers’ compensation plans and facility management; • Issues arising from the publication and distribution of information and the control of such information; • Issues arising from sharing information within the same industry, including anti-trust considerations; and • The encouragement of equal participation and diversity. As a way of presenting legal examples, the fictitious “Cen- ter City Transit Agency” (“CCTA”) will be used. You will need to substitute your agency’s name, city, and state as appropriate when using any clause or citation format demon- strated in this section. DEFINING, PROTECTING, AND USING INTELLECTUAL PROPERTY The notion of encouraging technological progress is pro- vided for in the U.S. Constitution, which includes a section that reads in part, “The Congress shall have Power . . . to pro- mote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Patent and copy- right law flows from these words. Trademark law is derived from the government’s responsibility to regulate commerce among the states and with foreign nations. Trade secret law arises from the right of businesses to protect their confiden- tial information and is regulated by state law. The definitions below provide an overview of each type of intellectual prop- erty relevant to writing maintenance practices. Patents A patent is a right given by the federal government to exclude anyone other than the owner of the patent from mak- ing, using, or selling an invention as described and claimed in the patent. A patent must be a new, useful, and “non-obvious” invention or process. In essence, a patent is a government- granted monopoly for a fixed number of years to encourage inventors to disclose their inventions to the public. After the patent has expired (a utility patent typically expires in 17 years), the invention as described and claimed in the patent is opened to the public, at which time anyone can make, use, or sell the invention. A patent may not be renewed. Utility patents are one type of patent that you may encounter when preparing maintenance practices. The four types of utility patents are: • Processes, • Machines, • Articles of manufacture, and • Compositions of matter. A “process” could be a unique method for changing brake linings on a bus. A “machine” could be a new device for measuring air pressure in bus tires. An “article of manufac- ture” could be a new type of vehicle seat with neck support that minimizes injury in a collision, and a “composition of matter” could be a new type of antifreeze that uses different chemicals than those traditionally used. If an invention is granted a registered patent by the United States Patent and Trademark Office (USPTO), the invention itself will normally have an inscription on its body that reads,

“U.S. Pat. Reg. No. 0000000.” In some cases this informa- tion is provided on packaging or other labeling that accom- panies the invention. When referring to the invention in writ- ten text, the patent holder will provide the same information either in the body of the text or in a footnote at least the first time the invention is mentioned. “Patent Pending” (also “Pat. Pend.” and “patent applied for”) is commonly noted on prod- ucts to indicate that a patent application has been filed and is being examined by the USPTO. If it is necessary to reference a patent held by another entity in the course of creating a maintenance practice, you are allowed to discuss, reference, explain, and compare any information within the patent. However, you cannot use the technology disclosed in the patent without first obtaining per- mission (called a license) from the patent owner. For instance, if the ACME Company has a patent on a unique method for measuring exhaust gas emissions of a diesel engine and you want to refer to it because it helps explain your procedure, then you may discuss the method as long as you identify that it is owned by ACME and cite the applica- ble patent registration number. Remember, however, you cannot use the method unless you first obtain permission from the patent holder. If you need to refer to an invention of your own agency that has been patented, you must cite the patent registration number at a minimum the first time the invention is referred to. If your agency only has a pending application, there is no need to include the application number in the notation. Here’s a sample notation for a registered patent: “U.S. Patent Reg. No. 0000000.” Here are some sample notations for a pending patent application: • “U.S. Patent Pending” • “Pat. Pend.” • “Patent Applied For” Copyrights A copyright is a “work of authorship” that is original and fixed in a tangible medium of expression, such as in a repair manual, computer document, or DVD. Copyrights are auto- matically protected under the Copyright Act of 1976. There is no legal requirement to file with the U.S. Copyright Office (at the Library of Congress). The Copyright Act defines “works of authorship” as encompassing a variety of material, including, but not limited to, literary works; computer pro- grams, including databases and operating systems; pictorial, graphic, and sculptural works; audiovisual works; sound recordings; and architectural works. Copyrights protect the manner in which an idea or information is conveyed, but not the idea or information itself. It is the creative expression of the idea or information that is covered by the Copyright Act. For example, in the case of a written maintenance procedure A-2 about how to replace brake linings, the words chosen are pro- tected, but the information about how to replace the brake linings is not. Rights in a copyright last the life of the owner plus 75 years. To determine whether material is formally regis- tered with the Copyright Office, look for the notation “®” normally found within the first few pages of a work of authorship or affixed to the medium in some obvious man- ner, such as the “copyright page” of a book or on the label of an album. However, original works of authorship do not have to be registered with the Copyright Office to be protected because copyright law automatically protects any original material, including a maintenance practice or manual, once the material is in a fixed format. Courts are currently more restrictive about allowing for photocopying and use of copy- righted material without gaining permission. Thus, “fair use” allowances are becoming harder to prove, so do not assume that your use is automatically covered by fair use because it is noncommercial in nature. “Cutting and pasting” information into your own docu- ment without citing its source is a direct violation of the Copyright Act. One should never cut and paste material pro- tected by copyright without giving full credit to the owners by citing the source and, if appropriate, by using text-editing devices, such as indentions and quotation marks, to show ownership by another. Even paraphrasing information can be problematic without proper attribution. If the idea from the original source remains the same in the paraphrased version, then the original source must be cited. Distribution of mate- rial that has violated the Copyright Act is also illegal and can carry monetary damages if proven in a court of law. Your agency’s attorney can offer further advice on whether certain material is protected or falls under the fair use exception for your purposes. As a side note, there still remains a dispute about whether all governmental use of copyrighted material qualifies as fair use. The consensus appears to be that government agencies, just like private enti- ties, must properly cite material and sometimes must also obtain permission before using material. While it is not required to designate your work of author- ship as proprietary information to claim protection, affixing a notation that includes the following can dissuade improper use: the Copyright Notice (“©”), the year of publication (not year of inception), the name of the copyright owner (not nec- essarily the author), and contact information if desired. Affixing the statement, “All rights reserved” to your work of authorship notifies users that all available rights are claimed. When you create an original maintenance practice and save it on your computer, the procedure in this fixed form is auto- matically protected by copyright law. You do not need to file an application with the Copyright Office in order to enjoy the protections of a copyright or to prevent others from claiming creative ownership over the work, copying the work, or dis- tributing the work. However, filing an application with the Copyright Office must be done before initiating a lawsuit for

infringement in federal court. In some cases, as the copyright holder, you may choose to waive your copyright protections either in part or in whole. Format examples are provided below. Here is a copyright format example: “©2004 Center City Transit Agency, Center City, ST. All rights reserved.” The following could be added as a footnote or within an agreement: All rights reserved. The author(s) (unless otherwise indi- cated) either own the intellectual property rights in the con- tent that is made available or has obtained the permission of the owner of the intellectual property to use such content. The following could be added to limit usage of copy- righted work: • No use of this copyrighted material other than for the purposes of this project is permitted without the express written permission of the author(s). • With the exception of properly cited sources presented herein, this maintenance practice is copyright protected under the copyright laws of the United States and are the exclusive property of Center City Transit Agency. Incorporating any part of the maintenance practice into another form is not permitted without prior written consent of Center City. Except for personal, noncom- mercial use, the reproduction, copying, publication or distribution of all or any part of this document, in any medium, printed or electronic, is forbidden without the express written permission of Center City. Consult with the attorney representing your agency to determine the appropriateness of including copyright protec- tion material in practices developed for agency use or those posted on the Web Board. Trademarks The U.S. Patent and Trademark Office defines a trademark as “a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs that identifies and distin- guishes the source of the goods of one party from those of others.” Having a legitimate intention to use a trademark in commerce also qualifies for some protection under the Trademark Act. In some cases, trademark owners who provide only services use the specific term “service mark” rather than the general term “trademark,” but there is no legal distinction between the two; thus, service marks receive the same protection as other trademarks. Trademark registra- tions can be renewed indefinitely and may last forever, as long as the trademark is continually used in commerce to identify the specified goods or services. If you wish to use the trademarks of others in describing a bus maintenance procedure, you may want to indicate that the marks are the property of another. For example, if, in the process of explaining your procedure, you state that the engine A-3 being worked on is manufactured by the ACME Company, you can identify the term “ACME Company” by placing “®” following the trademark, such as “ACME Company®”. Transit agencies, like other entities, may have the need to create and protect their own trademarks. The most com- mon reason to own and protect trademarks is for the adver- tising and marketing material used for promoting rider- ship. Other reasons can include the publication of manuals, conference materials, or other written documents for dis- tribution or sale, but can also include promotional items such as T-shirts. Another example may include a transit agency that wants to protect a slogan regarding the safety of their buses based on superior maintenance practices, such as the slogan, “Our Maintenance Team is Your Safety Team.” If your agency owns trademarks, regardless of whether they are registered, you should identify the words or slo- gans as trademarks because you gain some rights by doing so. You can identify trademarks by using “®” for registered trademarks, “TM” for unregistered trademarks, or “SM” for unregistered service marks (i.e., unregistered trademarks for services). The owner’s name (“Center City Transit”) and contact information can be added in a footnote if desired. The following may be used in different situations, such as in a footnote, in an agreement, in the credits pages of a main- tenance practice, or in a pop-up window on a website: The trademarks, “_________,” “__________________,” and “___________” are the intellectual property of Center City Transit Agency, Center City, ST. No use of these marks and any other marks owned may be used without express written consent. Any unauthorized commercial use will be deemed an infringement under applicable trademark laws. Center City Transit Agency reserves the right to prosecute unlawful infringement and use of its intellectual property to the full extent allowed of the law. The following additional information can also be added: “ ® ”, “ TM ”, and “SM” indicate ownership in a registered or pending trademark or service mark by Center City unless otherwise noted. Trade Secrets A trade secret is protected under state law. The Uniform Trade Secrets Act, enacted in several states, defines trade secrets as “information, including a formula, pattern, compilation, program, device, method, technique, or process that derives independent economic value from not being gen- erally known and not being readily ascertainable and is sub- ject to reasonable efforts to maintain secrecy.” A trade secret protects valuable, nonpublic information, such as all forms and types of financial, business, scientific, technical, economic, or engineering information, including methods, techniques, processes, procedures, programs, or

codes, whether tangible or intangible, regardless of how the information is stored, compiled, or memorialized. Two of the most famous trade secrets are the Coca Cola formula (believed to be known by only two living individuals) and the mixture of spices used in Kentucky Fried Chicken’s “origi- nal recipe” chicken. There is no particular way to notify the public whether a trade secret exists or not; therefore, you are not liable if you independently discover or even knowingly “reverse engi- neer” a trade secret of another. For example, conducting a chemical analysis of the mixture of spices used by Kentucky Fried Chicken for your own use does not violate trade secret laws. However, if you steal the recipe, then you are liable and can be prosecuted under the law. A trade secret can be established without filing an appli- cation with a government body or giving public notice as is required for trademarks and patents. The only requirement is that the subject matter of the trade secret be confidentially developed, provide some sort of economic advantage, and be kept a secret. A trade secret lasts indefinitely if secrecy is properly maintained. The responsibility to maintain a trade secret can entail signing a confidentiality agreement and following guidelines to protect the secret. If you have developed information that you believe should be protected by trade secret laws, you need to work closely with your agency’s attorney to develop guidelines and procedures that will maintain the level of secrecy necessary. There is no format for notifying third parties that a trade secret exists because maintaining secrecy over the informa- tion is the advantage. The moment you disclose a trade secret to someone who has not signed a confidentially agreement or who is not under obligation to keep the information confi- dential, you lose trade secret rights. Normally, if you have access to a trade secret owned by your agency, you know it. However, if you have any concerns, contact your agency’s attorney before publishing information that you think might be secret. Remember, once information is published, it is no longer a trade secret. CONSEQUENCES OF NOT PROTECTING INTELLECTUAL PROPERTY Responsibility Protecting the integrity of intellectual property and its sources is a vital part of our economy. The U.S. Constitution clearly sets out provisions for the protection of original works and inventions. When it comes to using reference material when developing practices, you are responsible for maintaining the integrity of the intellectual property of another. Simply put, it is unlawful to present a creative endeavor (patent, trademark, or copyright) of another as your own. A-4 Consequences of Misusing Intellectual Property The consequences for misusing the intellectual property of others can vary and may depend on whether the misuser had knowledge of what they were doing. If you make, use, sell, or offer to sell the patented inven- tion of another (called infringement), the consequences may be severe. If a patent owner believes there is infringement, typically the owner “stakes their claim of right” by sending a warning letter to the party making the infringement. The warning letter may include a copy of the patent itself for clar- ification. Sometimes the warning letter will contain an offer to the party receiving the letter for purchasing a license to the technology for a fee. Accepting the license offer and paying the fee allows for continued use under the guidelines set forth by the owner of the patent. If a license is not offered, however, and you continue to use the patent, the patent owner can sue in federal court to require you to stop using the patent and to pay damages for using it. There is a general trend toward large damage awards in cases of patent infringement. Similarly, if you violate someone’s copyright, the copyright owner can sue you in federal court. However, in the case of copyright, there is a legal distinction between knowingly and unknowingly violating a copyright, and this distinction can affect the amount of damages. There is an increasing trend toward strict interpretation of the Copyright Act, which can increase damages for aggrieved parties. If you use someone else’s trademark without their permis- sion, or “infringe” their trademark, you will typically receive a letter demanding that you cease using the trademark. This letter is called a “cease and desist” letter. If you continue to use the trademark, the trademark owner can sue you in court requesting that the court issue an order requiring you to stop using the trademark. The aggrieved party can ask the court for monetary damages and attorney’s fees. If the trademark owner can prove that you knowingly used their trademark and continued to do so after you were warned, the trademark owner can ask the court to triple the damages award. Since trade secrets are governed by state law, each state can set out different penalties for stealing someone else’s trade secret. In most states, the trade secret owner can take you to court and ask for monetary damages, including attor- ney’s fees. Furthermore, those who steal a trade secret are now subject to federal criminal statutes. An amendment to the Uniform Trade Secrets Act made in 1996 gave additional protection against anyone who steals a trade secret. EXAMPLES AND CLAUSES You may use the following examples and clauses in your own maintenance practices. However, be aware that some items may not apply to your particular situation and all ref- erences to CCTA or Center City Transit Agency are used as examples only.

Requesting Permission to Use Resources The following sample letter can be used to request per- mission to use the intellectual property of another: To-Whom-It-May-Concern: I am the maintenance supervisor for the Center City Transit Agency. We have an exclusive contract with you, “Bus Man- ufacturer,” for the buses we buy for our city. We are now involved in a project sponsored by the Transportation Research Board (TRB) regarding the sharing of our bus maintenance procedures with other agencies. The reason behind the project is an effort to improve the efficiency and effectiveness of our maintenance program, as well as the programs of other agencies. We are requesting from you, “Bus Manufacturer,” a limited, royalty-free license to use portions of the maintenance manual entitled “TITLE” in order to fully explain our bus maintenance procedures. If we do not hear back from you within 30 days of the date of this letter, we will presume there is no problem in using portions of the publication, “TITLE.” We intend to give full credit to the publishers or editors of the publication and have no intention whatsoever of misusing the work. CCTA will not intentionally infringe upon your established rights of copyright or trademark. Disclaimers and Limiting General Liability Disclaimers are used when sharing information to fore- warn users that the agency providing the information is not liable for the information or any consequences that may fol- low from the use of the information. For example, imagine that you develop and share a maintenance procedure for changing the brake linings on a particular model of bus. If another agency uses your procedure, you do not want to be held liable for any problems resulting from their usage. Liti- gation to determine who is at fault can be very time consum- ing and expensive. Issues that could arise include whether your procedure was faulty or whether the user’s incorpora- tion of the procedure was faulty. The maintenance procedure is presumed to be for informa- tional purposes only. Therefore, it is critical to notify users that the procedure you are sharing is to be followed at the users’ own risk of injury or liability. The following examples are pro- vided to illustrate the types of common clauses placed along with published information to limit liability to the author(s). Here is a sample disclaimer of endorsement: Any reference obtained in the published content does not constitute or imply an endorsement by the author(s) of products, processes, services, businesses, organizations, associations, or other entities. The views and opinions expressed in any referenced document do not necessarily state or reflect those of CCTA. Here are three sample general disclaimers: The information contained in the published content is pro- vided as a service to the bus transit community, and does not constitute advice. Every attempt was made to provide quality A-5 information for the purposes outlined for this project, but we make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of the content. Maintenance advice must be tailored to the specific circumstances of each agency. Because bus maintenance practices can change with- out notice, nothing provided herein should be used as a substitute for the advice of competent mechanics and/or maintenance crews. The author(s) make no warranties, express or implied, including warranties of merchantability and fitness for a particular purpose and assume no legal liability for the accu- racy, completeness, or usefulness of any information pub- lished for the purposes stated herein. The author(s) make no representations about the accuracy, completeness, or suitability of the information contained in the content published. All such information is provided “as is” without warranty of any kind. The author(s) hereby dis- claim all warranties and conditions with regard to this infor- mation, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title, and noninfringement. In no event shall the author(s) be liable for any special, direct, indirect, consequential or incidental damages, or damages whatsoever resulting from loss of use, data, or profits whether in action of contract, negligence, or other tortuous action arising out of or in connection with the published content. Users who follow the steps in the published maintenance practice do so at their own discretion and risk. Here is a sample disclaimer for indemnity: You agree to indemnify and hold “Center City Transit” and its representatives, affiliates, officers, agents, co-branders, other partners, and employees harmless from any claim or demand, including reasonable attorney’s fees, made by any third party due to or arising out of content submitted, posted, transmitted, or made available through this project, your use of electronic forms of transmission of the content, or your violation of any rights of another. You expressly understand and agree that the author(s) shall not be liable to users of the content for any direct, indirect, inci- dental, special, consequential, or exemplary damages, includ- ing but not limited to damages for loss of profits, goodwill, use, data, or other intangible losses resulting from (i) the use or the inability to use the maintenance practices as published, (ii) the cost of following the maintenance practices as published, and (iii) any other matter relating to the published content. Blanket Licenses If you would like to allow your peers permission to use the contents of your maintenance practice without contacting you or paying for a license, you can issue a “blanket license.” Blanket licenses normally cover a certain group of users for particular uses and are an efficient means to allow properly controlled usage of intellectual property. Blanket licenses do not allow for the acquisition of intellectual property as one’s own, but rather can establish a royalty-free (i.e., payment- free) arrangement to more than one entity or individual. Basically, a blanket license tells the reader that the informa- tion is intellectual property and that they can use it in a limited manner. In most cases, this means to give credit for

the origin of the information and to refrain from altering the material, including trademarks, in any way. Here’s a sample blanket license: Center City grants limited and revocable permission to use, copy, and distribute information and materials, including copyrights and trademarks referenced within this maintenance A-6 procedure, provided that (1) the appropriate trademark regis- tration symbol or copyright symbol appears where applicable; (2) after the first mention of such intellectual property, a foot- note or other text formatting is used to tell the reader who the source and owner of said intellectual property is; (3) usage is for informational and noncommercial purposes only and related to participation in this project only; and, (4) no modifi- cation occurs to the protected material by the user.