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19 a different view, particularly with respect to "unfixed" free-riding would not affect a transit agency's decision works.233 to continue collecting and disseminating real-time data Assuming a state recognizes the tort of misappro- for the agency's or its passengers' benefit. priation, it is not clear whether a claim for misappro- Second, a transit agency may need to show that a priation of a transit agency's real-time data would be free-rider is competing unfairly in the transit agency's preempted by the Copyright Act. On the one hand, sev- "primary market."237 A free-rider could argue that it is eral of the elements in the National Basketball Associa- not unfairly competing in an agency's primary market tion case appear to be satisfied. A transit agency col- because a transit agency's primary market is providing lects the data at its own expense; the data are time- transit services, not providing or selling real-time data. sensitive; any unauthorized persons using the data would be free-riding because they would not be expend- Guidance Number 10 ing their own resources to collect the data; and any data In some cases under state law there may be a tort for or software applications distributed or sold would be misappropriation of noncopyrightable data, i.e., a claim competing with the services offered by the transit not preempted by the Copyright Act. Because a transit agency. In sum, an unauthorized user selling an agency collects data at its own expense, data that is agency's real-time data would be able "to produce a di- time sensitive, unauthorized persons taking and using rectly competitive product for less money because it has an agency's data would be free-riding and competing lower costs." 234 unfairly with and at lower costs than the agency. What On the other hand, even if a transit agency were able could be determinative is whether a transit agency's to show that an unauthorized user is free-riding, the decision to continue collecting real-time data is sub- transit agency's misappropriation claim still could be stantially threatened by the free-rider's actions, as well preempted. Since its decision in the National Basketball as whether the free-rider is competing unfairly with the Association case, the Second Circuit has stated that transit agency in its primary market. "legal protection for the gathering of facts is available only when unauthorized copying of the facts gathered is IV. WHETHER A TRANSIT AGENCY HAS likely to deter the plaintiff, or others similarly situated, PROPRIETARY RIGHTS IN REAL-TIME DATA from gathering and disseminating those facts."235 A transit agency likely would have to demonstrate that Assuming that real-time data are not copyrightable free-riding reduces the transit agency's incentive to but that a transit agency, public or private, is collecting provide real-time data to such an extent that its contin- the data to disseminate on its own Web site or to a ued supply of real-time data "would be substantially party of its choosing, another issue is whether the tran- threatened."236 A putative free-rider could argue that sit agency has a protectable, proprietary interest in its real-time data. Presumably, only a transit agency or its 233 authorized representative would have the necessary Firoozye v. Earthlink Network, 153 F. Supp. 2d 1115, access to transit operations for the collection and dis- 112627 (N.D. Cal. 2001) (stating that "[w]here a plaintiff's breach of contract claim only asserts that a defendant violated semination of real-time data. According to one author- a promise not to use a certain work, that breach of contract ity, "a person having no trust or other relationship with claim is preempted," but holding that "[a] promise to pay for a the proprietor of a computerized database should not be work constitutes an extra element such that a breach of con- immunized from sanctions against electronically or tract claim is not preempted by section 301"); Wolff v. Inst. of cryptographically breaking the proprietor's security Elec. & Elecs. Eng'rs, Inc., 768 F. Supp. 66, 69 (S.D.N.Y. 1991) arrangements and accessing the proprietor's data." 238 (contract claim preempted). See, however, Huckshold v. HSSL, It appears that a transit agency has a property in- LLC, 344 F. Supp. 2d 1203 (E.D. Mo. 2004) (contract claim not terest in its data until such time that the agency re- preempted); Telecom Tech. Servs. Inc. v. Rolm Co., 388 F.3d leases its information into the public domain.239 In Mor- 820, 82930 (11th Cir. 2004) (contract claim not preempted); ris Communications Corporation v. PGA Tour, Inc.,240 Lipscher v. LRP Publ'ns, Inc., 266 F.3d 1305, 1318 (11th Cir. the issue was whether the PGA Tour, Inc. (PGA Tour) 2001) (no preemption of contract claim); Nat'l Car Rental Sys., Inc. v. Computer Assocs. Int'l, Inc., 991 F.2d 426, 431 (8th Cir. could condition access to its tournaments on the defen- 1993) (restrictions on use may constitute an additional element dant Morris Communications Corp.'s (Morris) agree- making a breach of contract not equivalent to a copyright ac- ment not to syndicate real-time golf scores obtained tion); ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1454 (7th Cir. from an on-site media center. The PGA Tour developed 1996) (holding that a claim for breach of contract was not a system, known as the Real-Time Scoring System equivalent to the exclusive rights protected by the Copyright Act); Taquino v. Teledyne Monarch Rubber, 893 F.2d 1488, 237 1501 (5th Cir. 1990) (holding that because a breach of contract Restatement (Third) of Unfair Competition, 38 cmt. c, action involves a promise that is in addition to the mere repro- at 41213 (stating that "[a]ppeals to the misappropriation doc- duction, distribution, or display of a work, the contract claim trine are almost always rejected when the appropriation does was not preempted by Section 301 of the Copyright Act). not intrude upon the plaintiff's primary market"). 234 238 Nat'l Basketball Ass'n, 105 F.3d at 854. 1 NIMMER ON COPYRIGHT, supra note 19, 101[B][2][b], 235 McKevitt v. Pallasch, 339 F.3d at 53435. at 1-691-70 (citation omitted). 239 236 See Nat'l Basketball Ass'n, 105 F.3d at 847 (citations See Roberts, supra note 207, at 185. 240 omitted). 235 F. Supp. 2d 1269 (M.D. Fla. 2002).

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20 (RTSS), for collecting the players' scores at its golf Tour had "a property right in the scores compiled by the tournaments in a manner so as not to disturb the play- use of RTSS, but that [the] property right vanishes ers by the use of volunteer workers or "hole reporters" when the scores are in the public domain."251 Second, the following groups of golfers. The hole reporters relayed district court held that "the PGA Tour controls the right the scores to a remote production truck with staff em- of access to that information and can place restrictions ployed by the PGA Tour that relayed the information on those attending the private event, giving the PGA ultimately to the Tour's Web site. 241 Tour a property right that the Court will protect."252 Morris wanted to obtain the data in real time and Third, "the PGA Tour has the right to license or sell sell it to media outlets. The case "present[ed] a novel broadcasting rights of its products over the Internet."253 and compelling question of who has the `right' to report The district court distinguished the National Basketball the news, produced and gathered by others, in an age of Association case on several grounds, including the near-instantaneous information."242 Although involving ground that Motorola used information that was in the golf, the collection and dissemination of scores at a public domain, because the information had been tournament where players are playing 18 holes simul- broadcast already on television or radio.254 Also, in the taneously is relevant to the question of a transit National Basketball Association case, there was no free- agency's proprietary interest in its real-time data. In riding, because "once in the public domain, Motorola the Morris Communications Corporation case, the dis- `expended their own resources to collect purely factual pute concerned the online publication of real-time golf information generated in NBA games.'"255 scores, "scores that are transmitted electronically In affirming the district court, the Eleventh Circuit nearly contemporaneously to their actual occurrence on held that "[t]he compiled real-time golf scores acquired the golf course."243 RTSS permitted Internet users to through RTSS are not a product that Morris has a right 244 follow the play of golfers "on a hole-by-hole basis." to sell because they are a derivative product of RTSS, Morris was unable to implement its own system be- which PGA owns exclusively."256 Furthermore, the PGA cause the PGA Tour's rules prohibited "unauthorized had "agreed to sell its product to Morris, and [had] use of wireless communication devices on the golf acted appropriately to protect its economic interests and course at its tournaments."245 In addition, the PGA Tour investments," but Morris was demanding access to the had Online Service Regulations (OLSR), whereby the Tour's proprietary RTSS without compensating the PGA Tour made the scores immediately available only PGA Tour for data that Morris wanted to acquire and to the Tour's "credentialed media invitees."246 The PGA sell to others, a "classic example of `free-riding....'"257 Tour's amended OLSR provided, for example, that "`no According to one source, government agencies are scoring information may be used by, sold, given, dis- protecting their noncopyrightable data by "using copy- tributed or otherwise transferred to, any party other right-like controls to limit access to and use of public than the Credentialed Site in any manner whatsoever, databases and other information developed under fed- without the prior written consent of the PGA Tour.'"247 eral programs or using federal funds," such as by licens- The PGA Tour would not grant media credentials to ing agreements, royalties for the use of data, restric- Morris unless the latter agreed to use scores obtained tions on the re-disclosure of information, limitations on from the on-site media center only in publications who may be qualified recipients, and denial of access to within the Morris Communications Group.248 digital versions of publicly available information."258 The federal district court and the Eleventh Circuit Another way to exercise control is through pricing.259 both agreed that the case did not involve the copyright A transit agency may use its Web site to make real- laws, because golf scores are noncopyrightable facts.249 time data available but include a terms-of-use agree- Both courts also agreed with the PGA Tour that it had ment that a user must accept so as to restrict the fur- "a property right in RTSS and that its regula- ther use, copying, or dissemination of the data. In tions...constitute[d] a reasonable safeguard against Scranton Times, supra, the court held that the defen- would-be free riders seeking to unfairly capitalize on its dant violated "certain Terms of Use when accessing product."250 The district court held, first, that the PGA Plaintiffs' website" and that the plaintiff's breach of contract claim was not preempted by the Copyright Act.260 241 Morris, 235 F. Supp. 2d at 1273. 242 Id. at 1272. 243 Id. at 1273. 251 244 Id. at 1281. Id. 252 245 Id. Id. at 127374 253 246 Id. at 1283. Id. at 1274. 254 247 Id. at 1279. Id. at 1275 (citation omitted). 255 248 Id. (citation omitted). Id. 256 249 Id. at 1296 (footnote omitted). Morris's claims were for 1) monopolization of the Internet 257 Id. at 1298. markets, 2) unlawful refusal to deal, 3) monopoly leveraging, 258 and 4) attempted monopolization of the Internet markets. Id. Gellman, supra note 8, at 100405 (footnotes omitted). 259 at 1278. Id. at 104748. 250 260 Id. at 1275. 2009 U.S. Dist. LEXIS 17278 at *19 (citation omitted).