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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][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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