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23 BART stated in its response to the survey that its notated Code of Maryland. To assist the Administration "license agreement is very straightforward:" the Contractor, if he wishes, shall, as hereinafter de- scribed in Article E below, clearly identify each portion of Developer License Agreement the technical data it considers a "trade secret" to which The San Francisco Bay Area Rapid Transit District the public shall be denied inspection. Contractor ac- (BART) hereby grants you (Licensee) non-exclusive, lim- knowledges that such classifications are advisory only. ited and revocable rights to use, reproduce, and redistrib- D. The following categories of technical data shall not be ute BART Data (Data) subject to the following Terms: construed or stamped or otherwise identified as "trade se- · BART trademarks and copyrighted materials, including crets": any confusingly similar variants, may not be used in as- 1. Technical data prepared or required to be delivered sociation with Data. under this contract and any subcontracts hereunder for · Data is provided on an "as is" and "as available" basis. the purpose of identifying sources, part numbers, size, BART makes no representations or warranties of any configurations, mating, attachment characteristics, func- kind, express or implied. BART disclaims all warranties, tions characteristics and performance requirements. express or implied, including but not limited to implied 2. Manual or instructional materials prepared or required warranties of merchantability and fitness for a particular to be delivered under this contract and any subcontracts purpose. BART and its employees, officers, directors and hereunder, for installation, operation, maintenance, re- agents will not be liable for damages of any kind arising pair, replacement, overhaul and training purposes. from the use of Data including but not limited to direct, indirect, incidental, punitive and consequential damages. Finally, as will be discussed in the next part, when there are FOIA or FOIL requests in New York and · BART reserves the right to alter and/or no longer pro- South Carolina, but not in California or Florida, a pub- vide Data at any time without prior notice. lic authority may require an individual or entity re- · BART maintains title, ownership, rights and interest in questing access to public data to sign an appropriate and to Data. agreement restricting the requester's dissemination or By using BART Data, you agree to be bound by all of the other use of the data. 271 Terms and Conditions set forth in this agreement. Guidance Number 12 The Maryland Transit Administration stated that The authorities seem to be in agreement that a tran- "[r]ights in technical data are covered by our standard sit agency may restrict access to and the copying or dis- Special Conditions language, included in contract solici- semination of its real-time data by a terms-of-use, end- tation packages." user license or other agreement. Possibly other forms of SGP -7.04 Rights in Technical Data copyright-like controls noted above could be used as A. Technical data means any and all information of a sci- well. However, a preemption issue could arise with any entific or technical nature, regardless of form or charac- agreement or control seeking to protect non- teristics, to be furnished by the Contractor pursuant to copyrightable data as though the data were protected this contract. It includes, but is not limited to, documen- by the copyright laws. tation of research, experimental, development or engi- neering work plus the information used to define a design B. Whether Copyright Law Preempts Provisions or process or to procure, produce, support, maintain or of Licenses or Other Agreements Seeking to operate the goods, supplies, systems, and equipment fur- nished hereunder. Examples of technical data include re- Protect Noncopyrightable Data search and engineering data, engineering drawings and There is an issue as to whether a contract or license associated lists, specifications, standards, process sheets, may protect data that are not copyrightable under the manuals, technical reports, catalog item identification copyright law and, thus, whether a restriction imposed and related information. by a license or other agreement may be preempted by B. The Administration, its employees and its consultants, the Copyright Act.272 Federal policy favors the free dis- shall have the unlimited right to use, duplicate and dis- semination of facts and ideas. Thus, there is an argu- close, in whole or in part and without charge, all technical ment that the copyright laws preempt restrictive provi- data, in any manner and for any purpose when, in the sions in contracts, which otherwise are enforceable opinion of the Administrator, such use is required by the under state law, to the extent that they attempt to keep Administration in the installation, operation, modifica- information out of the public domain that Congress in- tion, maintenance, repair, replacement, overhaul and tended to be available to the public. Under 17 U.S.C. training in respect to the Baltimore Region Rapid Transit § 301, a state may not create rights that are equivalent System. to any exclusive rights provided under the Copyright C. Nothing herein shall be construed as modifying or Act. abridging the obligations of the Administration in respect One writer maintains that "interpretations of the to the provisions of the Public Information Act, Section appropriate scope of a copyright license or of the suffi- 10-611 et seq. of the State Government Article of the An- 272 Deborah Tussey, UCITA, Copyright, and Capture, 21 271 Available at http://bart.gov/dev/schedules/license.htm, CARDOZO ARTS & ENT. L.J. 319, 340 (2003). See Copyright Act § last accessed on May 6, 2010. 301.