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13 are discussed in Section VI, infra. A copyright holder Guidance Number 6 may use digital rights management (DRM) technology A computer program designed to collect and dissemi- to place a digital "fence" around any data provided to a nate real-time data appears to be protected by the copy- requestor.150 "Copyright owners use two main types of right laws. However, a copyright may not be used to existing technologies, known as `watermarking' and "sequester" data that are not otherwise copyrightable. `fingerprinting,' to create digital identifications for their works...."151 Second, "`DRM software may...provide D. Copyright and Web Sites copyright owners with control over the various exclud- A number of transit agencies reported making real- able rights of copyright ownership, including...the abil- time data available through their Web sites. As held in ity to make copies of and redistribute the work.'"152 The Ticketmaster, LLC v. RMG Technologies, Inc., courts apply the DMCA to cases involving copyright "[c]opyright protection for a website may extend to both infringement; the Act is not limited to matters solely 153 the screen displays and the computer code for the web- involving the Internet. However, the Act only creates site.'"145 In ordering a preliminary injunction in Ticket- causes of action; it does not create a new property master, the court agreed that it was highly likely that right.154 the plaintiff would succeed in showing that the defen- Section 1201(a)(1) is the anti-circumvention provi- dant received notice of and assented to Ticketmaster's sion of the DMCA. The section "prohibits a person from Terms of Use by using its Web site.146 The court held `circumventing a technological measure that effectively that "[t]he terms permit access for personal use only, controls access to a work protected under [Title 17, gov- prohibit commercial use, prohibit the use of bots and erning copyright].'"155 It should be noted that individuals automated devices, limit the frequency with which us- "who use such devices may be subject to liability under ers can make requests through the website, and require 1201(a)(1) whether they infringe or not."156 Thus, an the user to agree not to interfere with the proper work- element of the DMCA that a copyright holder must ing of the website."147 The "[u]se of a work in excess of a prove is that the circumvention was "undertaken `with- license gives rise to liability for copyright infringe- out the authority of the copyright owner.'"157 ment."148 There are various exceptions in the DMCA, for ex- In sum, real-time data may be collected and distrib- ample, for nonprofit libraries, archives, and educational uted with the aid of a computer program or made avail- institutions,158 and reverse engineering is permitted by 159 able to users by a Web site for which a transit agency the statute. An important exception under the Act is has registered a copyright with access to and use of the that it does not prohibit fair use of information, even if site restricted by the agency's terms-of-use agreement. the information is unlawfully obtained under the Act.160 As discussed in Section IV, infra, a transit agency has a Sections 1201(a)(2) and 1201(b)(1) are the "anti- protectable property interest in its real-time data until trafficking provisions" of the DMCA. The provisions it releases the data into the public domain. prohibit trafficking "in devices that circumvent access Guidance Number 7 The DMCA modernizes copyright law for the digital age. Pub. A web site may constitute an original work of author- L. No. 105304, 112 Stat. 2860 (1998). ship protected by the Copyright Act. Moreover, the 150 Ira Bloom, Freedom of Information Laws in the Digital copyright-owner may control the use of data accessible Age: The Death Knell of Informational Privacy, 12 RICH. J.L. & via the site by the owner's terms-of-use agreement to TECH. 9, nn.27781 (2006). which users must assent when wanting access to the 151 Id. at nn.27781. site. 152 Id. (footnote omitted). 153 E. Copyright Protection and the Digital 17 U.S.C.A. 1201(a)(2) (2009); Chamberlain Group, Inc. v. Skylink Techs., Inc., 292 F. Supp. 2d 1023 (N.D. Ill. 2003). Millennium Copyright Act 154 Chamberlain Group, Inc. v. Skylink Techs. 381 F.3d In 1998, Congress enacted the Digital Millennium 1178, 1192 (Fed. Cir. 2004). Copyright Act (DMCA). The Act applies only to a work 155 Id. at 1195 (quoting Universal City Studios v. Corley, 273 protected by the Copyright Act.149 Other federal statutes F.3d 429, 44041 (2d Cir. 2001) (some internal quotation marks omitted). 156 Id. at 1195. 145 157 Ticketmaster LLC, 507 F. Supp. 2d at 1104 (citation Id. at 1193 (citation omitted). omitted). 158 17 U.S.C. 1201(d) (2009). 146 Id. at 1107 (citation omitted) and 1109. 159 Id. 1201(f) (2009). 147 Id. at 1108. 160 Universal City Studios, Inc. v. Corley, 273 F.3d 429, 443 148 Id. (citation omitted). 44 (2d Cir. 2001). "The legislative history of the enacted bill 149 17 U.S.C. 1201(a) (2009). Congress enacted the DMCA makes quite clear that Congress intended to adopt a `balanced' "to implement the World Intellectual Property Organization approach to accommodating both piracy and fair use concerns, Copyright Treaty and [to serve] as a means to better protect eschewing the quick fix of simply exempting from the statute copyright in the digital age." Chamberlain Group, Inc. v. Sky- all circumventions for fair use." Id. at 444 n.13, (citing H.R. link Techs., Inc., 292 F. Supp. 2d 1023, 1034 (N.D. Ill. 2003). REP. NO. 105-551, pt. 2, at 25 (1998)).