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21 However, transit agencies may choose to make competition among developers over who can serve BART information available with little restriction and without customers "best" on these platforms (e.g. there are four charging for it. The Bay Area Rapid Transit's (BART) BART apps on iPhone alone). This sort of competition is response to the survey was that BART "share[s] real-time extremely beneficial for customers. data in an XML feed format ( There are BART apps for Facebook and Twitter (see /barteta.xml) along with documentation (http://www.bart., which supplement BART's existing gov/schedules/developers/etas/aspx)." BART's response presence in these social channels. stated also that "[s]ince BART has been sharing data There are BART real-time ETA displays in cafes, build- with others for so always seemed antithetical ings, and shopping malls that use our open-data services to begin charging for it." With respect to developers (See BART did not fund the capi- wanting to use BART's data, BART's Web site states: tal, maintenance, or operation costs for these displays, Developers please note: If you want more than just ETAs, which essentially advertise BART services for free. check out The Real BART API. It has service advisories, In sum, based on the National Basketball Associa- complete BART trip plans, station information and more. tion and Morris cases, as well as the NYMEX case, it For quick and easy real-time ETAs, use our simple-to- does not appear that real-time data are copyrightable, parse XML feed and crank out your killer app with the because, inter alia, facts such as real-time data are not same real-time data we use on the BART website, hot off subject to copyright protection. Nevertheless, real-time the griddle from BART Central. Here's what you need to data come within the subject matter of copyright, mean- know: ing that causes of action that otherwise could be used to Getting a validation key protect real-time data may be preempted. Second, how- ever, as between private parties, a contract or license Psyche: you don't need one. We're opting for "open" with- may restrict access to or the use of the real-time data out a lot of strings attached. Just follow our simple Li- until it becomes part of the public domain. Further- cense Agreement, give our customers good information more, the weight of authority appears to be that a tran- and don't hog resources. If that doesn't work for you, we can manage usage with keys and write more terms and sit agency may protect its real-time data by contract conditions. But who wants that? and that Section 301 of the Copyright Act does not pre- empt a state court's enforcement of such a private right Keep your work up to date or restriction on access to or use of the data. In addition This feed is a work in progress. When we change some- to contracts, such as licenses and terms-of-use agree- thing, we'll try to give you plenty of notice through the ments, even if real-time data are not copyrightable, RSS feed and the opt-in email list and the BART Devel- there may be copyright-like controls to limit access to opers Google Group. and use of real-time data. As discussed in Section VII, infra, however, a government-owned transit agency Don't use the BART logo may be required to produce its data in response to a Only we get to use official BART trademarks and copy- FOIA or FOIL request. Finally, however, some transit righted works to let customers know when they're getting agencies may choose to make real-time data available info directly from BART versus someplace else. with little restriction and without charge. Don't forget about us Guidance Number 11 Give us a shout out or a link back in your app, then drop Based on current case law, as long as real-time data us a line to make a suggestion for the App Center. have not entered the public domain, a transit agency About the Feed has a proprietary interest in its data. A transit agency has the right to license or sell its real-time data. A tran- The BART Real Time ETA Feed is an XML data file with a root element that encompasses elements holding the sit agency's restriction of access to and use of its real- station name, the station abbreviation, the date and time time data is a reasonable safeguard against would be and a series of ETA elements. Each ETA element con- free-riders or other unauthorized users. Access to real- tains a destination and an estimate showing up to the time data, for example, via a Web site, may be re- next three trains arriving at the specified station with the stricted by a transit agency's terms-of-use agreement 261 Given destination. The file is updated every 60 seconds. for its Web site. BART's response to the survey stated also that open data initiatives have allowed BART to reach more V. CONTRACTUAL ISSUES AND THE PROTECTION customers in more places than otherwise would be possi- OF REAL-TIME DATA ble: There are dozens of mobile apps, free and fee, for An- A. Use of Contracts, Licenses, and End-User droid, BlackBerry, iPhone, J2ME, and other mobile plat- Agreements forms (see In fact, there is literally A transit agency may impose restrictions on access to and the use and dissemination of its data by a terms- 261 Available at of-use, end-user license or other agreement. In respond- etas.aspx, last accessed on May 6, 2010. ing to the survey, several transit agencies reported that

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22 they would rely on contractual provisions to protect data feed called the Level 1/Last Sale feed" for which real-time data. Indeed, a "contract is the chief, and "[m]arket $20.00 per month for sometimes the only, means of the protection" of such unlimited access to real-time (less than fifteen-minute data.262 It may be noted that the license agreement, for delayed) data. Non-professionals are charged just $4.00 example, used by the Regional Transportation District, per month for the same information. Professional and Denver, Colorado, contains a provision referring to non-professional users who can wait fifteen minutes or copyright. Paragraph 9 states, more for the information receive it free of charge."267 The Data and all content of this website is the property of According to one authority, "the Nasdaq Subscriber RTD or its content suppliers, and is protected by United Agreement generally prohibits retransmission of the States and international copyright laws. The compilation real-time data."268 of the Data on this website is the exclusive property of Nasdaq does permit numerous entities to freely redis- RTD, and is likewise protected by US and international seminate its data, but it does so under a different contrac- 263 copyright laws. tual structure--a vendor agreement. Under this agree- It appears that Google relies on licensing restric- ment, a vendor is given the authority to redisseminate tions, not copyright, as its primary means of controlling data, as long as it agrees to obtain the Subscriber Agree- the use of information.264 ment from its customers, and report and bill the number A licensing agreement may prohibit a licenseeuser of customers it services to Nasdaq. In this way, Nasdaq is able to facilitate broad dissemination of its real-time data from extracting data for uses other than those intended 269 worldwide while guarding its vital revenue stream. by the transit agency, such as making the data avail- able to third parties or using the data in a manner not As noted, several agencies responding to the survey sanctioned by a transit agency. Nevertheless, as dis- stated that they would rely primarily on their contracts cussed in subsection B, infra, there may be an issue to protect real-time data. An example of a contractual whether a provision in a licensing agreement seeking to clause protecting a transit agency's real-time data is the protect real-time data, even if noncopyrightable, from one appearing in the August 2009 agreement between unauthorized copying and use is preempted by the the San Francisco Municipal Transportation Agency copyright laws. (SFMTA) and NextBus: In addition to the example of the PGA Tour's use of 1.33. Ownership of Data. The City recognizes that the an agreement in Morris Communications Corporation v. AVLS and related software provided by Contractor under PGA Tour, Inc,265 an example of an entity taking meas- the AVLS Contract are proprietary systems to which the ures to protect its real-time data is the stock market City's interest is limited to the license provisions set out in this Maintenance Agreement and in the AVLS Con- exchange known as the Nasdaq.266 Nasdaq Stock Mar- tract. Notwithstanding any understandings or agreements ket, Inc.'s, up-to-date quotations and information on created prior to this Maintenance Agreement to the con- stock trades "are packaged by Nasdaq into a broadcast trary, however, all data generated, transmitted, distrib- uted, manipulated, compiled, stored, archived, or reported 262 Wolfson, supra note 7, at 84. by the AVLS concerning SFMTA vehicles and operations, 263 Available at: including but not limited to data concerning vehicle loca- License_Agreement.pdf, last accessed on June 30, 2010. tion, predicted arrival times, route and stop configuration Paragraph 4 in the license agreement provides that "RTD and historic AVLS data is the property of the SFMTA trademarks and copyrighted materials, including any without reservation of rights or other restriction of any confusingly similar variants, may not be used in association kind. AVLS data concerning the location of SFMTA vehi- with [the] Data." For links to other license agreements used by cles in real time and predicted arrival times are records transit agencies, see Google Transit, "Public Feeds, List of that the City may make available to the public through Publicly Accessible Transit Data Feeds," available at: passenger information display signs, data feeds (includ-, ing but not limited to XML data feeds), internet web last accessed on June 30, 2010. pages and weblinks, information kiosks, public informa- 264 The copyrights Google holds in relation to Google Maps tion systems, PDA and cell phone applications, electronic consist of the images, the symbols and legends used, and other messaging, and other technologies that may be utilized to works of authorship related to their mapping service. Although inform persons wishing to access, process, or archive in- Google has a copyright in its photos and maps, Google, Inc., formation concerning public transit in San Francisco. apparently has registered only two copyrights with the Copy- Contractor may retain and use copies of SFMTA AVLS right Office. One of the copyrights is for a documentary movie data for reference and as documentation of its experience 270 Google produced on polio eradication, and the other is a soft- and capabilities. (emphasis supplied) ware program named InCircle. 265 235 F. Supp. 2d 1269, 1327 (M.D. Fla. 2002), aff'd, 364 267 F.3d 1288 (11th Cir. 2004) (stating that access was conditioned Wolfson, supra note 7, at 89. 268 on the PGA Tour's agreement that required that real-time Id. (footnote omitted) (citing The Nasdaq Stock Market, scores obtained in the media center would not be syndicated). Inc., Consolidated Subscriber Agreement). 269 266 Another example is Dun & Bradstreet, "which prohibits Id. at 90 (footnote omitted) (citing The Nasdaq Stock redissemination of its reports. D&B is able to protect the pri- Market, Inc., Vendor Agreement for Level 1 Service and Last vacy of the subjects of its reports by strict contractual prohibi- Sale Service (on file with the author)). 270 tions that undoubtedly `abrogate or restrict' fair use rights." Available at Wolfson, supra note 7, at 92. smith-of-next-bus-said.php, last accessed on Jan. 5, 2010.