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OCR for page 19
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).
