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3 LEGAL ARRANGEMENTS FOR USE AND CONTROL OF REAL-TIME DATA by Larry W. Thomas, Attorney-at-Law INTRODUCTION eral Copyright Act of 1976,5 or whether, alternatively, an agency would have a claim under state law for This digest addresses the legal implications of a someone's misappropriation of the agency's data. The transit agency's ownership and sharing of real-time digest discusses whether an agency may protect its data data. As a 2006 Transit Cooperative Research Program by a terms-of-use, end-user license or other agreement.6 Report discussing real-time data stated, "[t]he transit As will be discussed, it appears that protection for real- industry is in the midst of a revolution from being data time data is pursuant to contract and licensing law, not poor to data rich."1 As used herein, the term real-time the copyright laws. data means data that are being collected at the same The digest examines whether a transit agency may time they are being generated and that may be dis- have to disclose its real-time data pursuant to a public seminated immediately to patrons or others. records disclosure law, such as a freedom of information Transit agencies increasingly are taking advantage act (FOIA) or a freedom of information law (FOIL), even of technological advancements in the collection and dis- if the government paid for the technology needed to tribution of real-time data to provide up-to-date infor- collect real-time data. The digest considers whether a mation to patrons. Transit agencies are able to provide transit agency could refuse to provide its real-time data useful information through a number of distribution pursuant to a FOIA or FOIL request because of home- channels to enhance customer relations, such as their land security and antiterrorism or other public safety 2 own Web sites, as well as via Google Transit. In addi- concerns. Appendix A to the digest discusses the results tion, some transit agencies allow subscribers to use of a survey of transit providers regarding their collec- their mobile telephones or PDA devices for access to tion, use, and protection of real-time data, including real-time data. whether real-time data are being used to increase ad- As discussed in Appendix A, participating transit vertising revenue. Following the discussions of many of agencies report that customer relations have improved the issues covered by the digest, the author has in- as a result of providing information in real time. How- cluded a section entitled "Guidance" based on the im- ever, another use of real-time data is to improve transit mediately preceding text. management and performance.3 An automatic vehicle location (AVL) system is capable of capturing and ar- I. COPYRIGHT LAW AND THE PROTECTION OF chiving data that may be analyzed to improve transit 4 TRANSIT AGENCIES' REAL-TIME DATA practices. This digest discusses whether a transit agency has ownership rights in its real-time data and whether it may protect itself from someone copying, A. Whether a Public Transit Agency May Hold a using, or disseminating its real-time data. The digest Copyright in Real-Time Data addresses whether real-time data may be protected by Although the issue of whether data are copyrightable the law of intellectual property, in particular the Fed- is an important one, much of the American economy is based on "the creation and compilation of information" that are not copyrightable or are "only weakly protected by copyright."7 For transit agencies that are govern- 1 PETER G. FURTH, BRENDON HEMILY, THEO H.J. MULLER, & mental entities, a threshold issue is whether they may JAMES G. STRATHMAN, USING ARCHIVED AVLAPC DATA TO hold a copyright in their works or in works authored by IMPROVE TRANSIT PERFORMANCE AND MANAGEMENT 25 (Tran- others for the government. sit Cooperative Research Program, Transportation Research Board, TCRP Report No. 113, 2006), hereinafter cited as "TCRP Report 113," http://onlinepubs.trb.org/Onlinepubs/tcrp/ 5 Pub. L. No. 95-553, 90 Stat. 2541 (1976). tcrp_rpt_113.pdf, last accessed on Dec. 7, 2009. 6 See, e.g., Katleen Janssen & Jos Dumortier, The Protection 2 See Michael Perkins, It's here! Metro posts transit data of Maps and Spatial Databases in Europe and the United online, Greater, Greater Washington, weblog, http://greater States By Copyright and the Sui Generis Right, 24 J. greaterwashington.org/post.cgl?id+1845, Metro Involvement MARSHALL J. COMPUTER & INFO. L. 195, 196 (2006). with Google Held up by the Details, D.C. EXAMINER, Dec. 16, 7 Joel Rothstein Wolfson, Contract and Copyright Are Not at 2008, http://www.dcexaminer.com/local/Metro_involvement_ War: A Reply to "The Metamorphosis of Contract into Expand," with_Google_Transit_held_up_by_the_details12-16.html. 87 CAL. L. REV. 79, 86 (1999) (citing, e.g., Warren Publ'g Co. v. 3 TCRP Report 113, at 1. Microdos Data Corp., 115 F.3d 1509 (11th Cir. 1997)) (no copy- 4 Id. at 1417 for more details regarding the operation of right protection for a factbook that was scanned and then sold AVL systems. as a CD-ROM in competition with Warren's paper publication).