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14 controls in ways that facilitate infringement...."161 The of the Ticketmaster Web site was not a fair use.173 two anti-trafficking provisions differ in that subsection 1201(a)(2) covers those who traffic in technol- Guidance Number 8 ogy that can circumvent "a technological measure that ef- The DMCA only applies to works protected by the fectively controls access to a work protected under" Title Copyright Act. Assuming a work is copyrightable (e.g., 17, whereas subsection 1201(b)(1) covers those who traffic a compilation or an automatic database), digital rights in technology that can circumvent "protection afforded by management technology could be used to protect the a technological measure that effectively protects a right of copyright and subject violators using circumvention 162 a copyright owner under" Title 17. devices (or engaging in trafficking in such devices) to Section 1202 of the DMCA concerns the protection of liability as provided under the DMCA. copyright management information and is "limited to components of technological measures" that protect the III. PROTECTION FOR REAL-TIME DATA UNDER copyright.163 For Section 1202 to apply, "the information STATE LAW removed must function as a component of an automated 164 copyright protection or management system;" the sec- tion does not apply if there is a "failure to prove the A. Preemption by the Copyright Act of Causes of knowledge or intent requirements for [a] violation."165 It Action Under State Law has been held that neither a logo nor a hyperlink comes The dissemination of real-time transit data is analo- within the protection of Section 1202 of the DMCA, be- gous to the distribution of other real-time data, such as cause neither is "a component of an automated copy- news, sports, or stock-market data via new technolo- right protection or management system...."166 gies. However, as one article notes, "the potential for Section 1203 of the DMCA provides for jurisdiction the sale of real-time information...as a major revenue in a federal court and for remedies that include injunc- source will necessarily hinge on the ability of [the licen- tive relief;167 impoundment of any unlawful device or sor] to retain the exclusive ability or legal right to con- product168 or its destruction;169 damages, either actual or trol that information long enough to exploit its real- statutory;170 and costs and attorneys' fees in the discre- time value."174 Regardless of whether data are copy- tion of the court.171 rightable, if a transit agency has a cause of action Although no cases were located involving the DMCA against an unauthorized user of real-time data, there and registered compilations or databases or computer may be an issue whether a state remedy, even for programs for collecting or disseminating real-time data, breach of contract, is preempted by the Copyright Act. 172 in Ticketmaster L.L.C. v. RMG Technologies, Inc., The reason for federal preemption is Ticketmaster, the copyright-owner, brought an action to prevent states from giving special protection to works against the defendant RMG Technologies for developing of authorship that Congress has decided should be in the and marketing an automated device that accessed and public domain, which [Congress] can accomplish only if navigated Ticketmaster's Web site in a manner that "subject matter of copyright" includes all works of a type infringed Ticketmaster's copyrights and violated the covered by sections 102 and 103, even if federal law does 175 accepted terms of use for its Web site. The court not afford protection to them." granted Ticketmaster's motion for a preliminary injunc- Claims under state law are preempted when they tion. Ticketmaster demonstrated that it was highly satisfy the "subject matter" and the "equivalency" tests likely that the defendant's use of automated devices to for preemption under Section 301 of the Copyright Act. access the Ticketmaster Web site violated a provision in Both tests must be satisfied for preemption to occur.176 the Web site's terms of use and that the defendant's use As for the subject matter test, Section 102 of the Copy- right Act provides that the scope of copyright protection extends to "original works of authorship fixed in any 161 tangible medium of expression." A nonexclusive list of Chamberlain Group, Inc., 381 F.3d at 1195. 162 eight categories of subject matter is included in Universal City Studios, Inc., 273 F.3d at 441 (citations omitted). 163 IQ Group, Ltd. v. Wiesner Publ'g LLC, 409 F. Supp. 2d 173 Id. at 1117. 587, 593 (D.N.J. 2006) (footnote omitted). 174 Gary R. Roberts, The Scope of the Exclusive Right to Con- 164 Id. at 597. trol Dissemination of Real-Time Sports Event Information, 15 165 Id. at 593 (citations omitted). STAN. L. & POL'Y REV. 167, 168 (2004). Roberts states "that 166 Id. at 598. sports promoters do appear to have some limited rights to con- 167 trol the dissemination of real-time information about their own 17 U.S.C. 1203(b)(1) (2009). 168 events, but that these rights are probably not broad enough to Id. 1203(b)(2) (2009). provide a basis for the generation of significant new revenues." 169 Id. 1203(b)(6) (2009). Id. 170 Id. 1203(b)(3) and (c) (2009). 175 ATC Distrib. Group, Inc., 402 F.3d at 713 (citations omit- 171 Id. 1203(b)(4) and (5) (2009). ted). 172 176 Ticketmaster LLC v. RMG Techs., Inc., 507 F. Supp. 2d See Baltimore Orioles, Inc. v. Major League Baseball 1096 (C.D. Cal. 2007). Players Ass'n, 805 F.2d 663, 674 (7th Cir. 1986).

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15 102(a).177 The subject matter test "is met when the work. ...Thus, a right is equivalent to one of the rights work of authorship being copied or misappropriated comprised by a copyright if it "is infringed by the mere act 185 `fall[s] within the ambit of copyright protection.'"178 of reproduction, performance, distribution or display." Compilations of facts come within the subject matter of A wide variety of causes of action under state law copyright.179 Furthermore, "[e]lectronic databases are may be preempted. Some claims are more likely to be expressly mentioned as falling within the category of preempted than other claims. For example, the courts literary works in the 1976 House Judiciary Committee generally have held that claims sounding in quasi- report."180 contract,186 unjust enrichment,187 right of publicity or It is important to note that the types of works that privacy,188 tortious interference with contracts,189 and are protectable by copyright are narrower than the unfair competition190 are preempted. On the other hand, types of subjects that are within copyright's subject mat- claims for breach of a bailment,191 of an express con- ter.181 185 The fact that none of these works are eligible for copyright Baltimore Orioles, Inc., 805 F.2d at 67677 (citations protection under federal law does not preclude the preemp- omitted) (footnote omitted). 186 tion of ATC's state law claims. "As long as a work fits 1 NIMMER ON COPYRIGHT, supra note 19, 1.01[B][1][g] within one of the general subject matter categories of sec- (stating that claims for quasi contract and unjust enrichment tions 102 and 103, the bill prevents the States from pro- are preempted). 187 tecting it even if it fails to achieve Federal statutory copy- Murray Hill Publ'ns, Inc. v. ABC Communs., Inc., 264 right because it is too minimal or lacking in originality to F.3d 622, 63738 (6th Cir. 2001) (holding that an unjust en- 182 qualify, or because it has fallen into the public domain." richment claim was preempted); Briarpatch Ltd., L.P. v. Phoe- (emphasis supplied) nix Pictures, Inc., 373 F.3d 296, 30607 (2d Cir. 2004) (holding Noncopyrightable works are still "within the subject that a claim for unjust enrichment or quasi contract was an matter of copyright."183 For example, some courts have "equivalent right" and preempted to the extent it applied to the subject matter of copyright). found that Feist-like collections of facts, even if ineligi- 188 ble for copyright protection, come within the subject Laws v. Sony Music Entertainment, Inc., 448 F.3d 1134, 1144, 1145 (9th Cir. 2006). In Laws, the court affirmed the matter of copyright, meaning that a state cause of ac- 184 district court's decision that a performer's claims for violation tion may be preempted. of her common law right to privacy and her statutory right of Second, under the equivalency test, there is preemp- publicity were preempted by the Copyright Act. However, the tion when a right sought to be asserted under state law court stated that not all claims based on common law or statu- is protected exclusively under the Copyright Act. Be- tory rights of privacy, publicity, and trade secrets, as well as cause real-time transit data comes within the scope of the general law of defamation and fraud, were extinguished as copyright, a state law claim would be preempted that is long as "those causes of action do not concern the subject mat- equivalent to the rights protected by the Copyright Act. ter of copyright and contain qualitatively different elements than those contained in a copyright infringement suit." A right under state law is "equivalent" to one of the rights 189 within the general scope of copyright if it is violated by Huckshold v. HSSI, L.L.C., 344 F. Supp. 2d 1203, 1208 the exercise of any of the rights set forth in 106. ...That (E.D. Mo. 2004) (holding that tortious interference with a con- section grants the owner of a copyright the exclusive tract claim was not qualitatively different from a claim for rights to reproduce (whether in original or derivative infringement under the Copyright Act); Stromback v. New Line form), distribute, perform, and display the copyrighted Cinema, 384 F.3d 283, 306 (6th Cir. 2004) ("The fact that the tort, unlike copyright infringement, requires awareness of the conflicting contract and an intentional interference with it 177 17 U.S.C. 102(a) lists 1) literary works; 2) musical merely means that the state-created right is narrower than its works, including any accompanying words; 3) dramatic works, copyright counterpart, not that it is qualitatively different so including any accompanying music; 4) pantomimes and cho- as to preclude pre-emption."); Harper & Row Publishers, Inc. v. reographic works; 5) pictorial, graphic, and sculptural works; Nation Enters., 723 F.2d 195, 201 (2d Cir. 1983) (holding that 6) motion pictures and other audiovisual works; 7) sound re- a claim for intentional interference was preempted). See, how- cordings; and 8) architectural works. ever, Brush Creek Media, Inc. v. Boujaklian, 2002 U.S. Dist. 178 Nat'l Basketball Ass'n v. Motorola, Inc., 105 F.3d 841, LEXIS 15321, at *16 (N.D. Cal. 2002) (finding that a state 848 (2d Cir. 1997) (citation omitted). claim for interference with prospective economic advantage 179 Lipscher v. LRP Publs., Inc., 266 F.3d 1305, 1311 (11th was not preempted because the claim required the element of Cir. 2001) (citation omitted). improperly licensing the right to copyrighted material in addi- 180 tion to the element of copying). PATRY supra note 72, 3:69, at 3-220. 190 181 Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 772, 789, See ATC Distribution Group, Inc., 402 F.3d at 713. 182 797 (5th Cir. 1999) (claim for unfair competition by misappro- Id. (citations omitted). priation preempted); ATC Distrib. Group, Inc. v. Whatever It 183 Lipscher, 266 F.3d at 1311 (quoting Feist Publ'ns, Inc., Takes Transmission and Parts, Inc., 402 F.3d 700, 713 (6th 499 U.S. at 345). Cir. 2005) (holding that a claim for unfair competition "com- 184 See, e.g., ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1453 pletely preempted by federal law"). 191 (7th Cir. 1996) (holding that information in the form of raw Boyle v. Stephens Inc., 1998 U.S. Dist. LEXIS 15215, at data, such as telephone listings and customer names, are *20 (S.D.N.Y. 1998) (holding that a bailment claim was pre- "`within the subject matter of copyright' even if, after Feist, empted because the claim was "in actuality a claim for reten- they are not sufficiently original to be copyrighted") (citation tion of `intellectual property rights' and not the tangible prop- omitted). erty") (citations omitted).