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32 rights of the parties to the contract.389 Thus, the anti- clude them in a licensing agreement while excluding preemptionist argument is that a private contract is UCITA's application to the agreement. In particular, enforceable even if the material that is protected by transit agencies will want to be aware of UCITA's de- contract from being copied or distributed is not pro- fault provisions. tected by the Copyright Act.390 Inasmuch as only Mary- land and Virginia have enacted UCITA, no cases were VII. WHETHER GOVERNMENT TRANSIT located holding whether the Copyright Act preempts AGENCIES MAY BE REQUIRED TO RELEASE REAL- any provisions of UCITA.391 TIME DATA Because UCITA applies to transactions in electronic information,392 a licensor such as a transit agency may want to be aware of UCITA's provisions. For instance, A. Federal FOIA Issues although UCITA generally permits transfer of a con- The purpose of the Federal FOIA is to open the ad- 397 tractual interest under a license, the parties may agree ministrative process to public scrutiny, disclosure be- to the prohibition of a transfer.393 Section 503 of UCITA ing the dominant objective of the Act.398 The law pro- provides that "a term prohibiting transfers of a party's vides for full disclosure by an agency unless the 394 `contractual interest' is enforceable." information sought is exempt from disclosure under one UCITA's self-help provisions, whereby a licensor of the Act's nine exceptions. In general, the statute is could "reclaim software in the case of breach by the li- interpreted broadly to permit access to official informa- censee," were revised from what was originally pro- tion so as to create a judicially enforceable public right posed.395 However, Section 605 of UCITA "still permits to government information that otherwise would not be 399 providers to enforce use restrictions on information available for inspection. The term "agency" as used in through `automatic restraints' if the agreement author- the Act includes any government corporation or gov- izes use of the restraint, and if the restraint prevents a ernment-controlled corporation.400 Furthermore, "the 396 use inconsistent with the agreement." A transit FOIA does not authorize an agency to restrict the use of agency as a licensor may want to specify in a contract information in the hands of a recipient."401 that it has the right to suspend providing real-time data When it comes to real-time data, it appears that the either for a licensor's breach of the agreement or for legal basis for refusing to disclose the data is either other reasons within the licensor's discretion, including weak or even nonexistent.402 Even if, as discussed in but not limited to matters such as transit safety or se- Sections I.B. and I.C, supra, the data are not protected curity. by copyright law, or even if the real-time data are copy- Finally, although only two states have adopted rightable, a requester may obtain the data and in some UCITA, a transit agency should be aware of UCITA's jurisdictions be able to reuse the data commercially or provisions governing choice of law and of the forum so otherwise. One source has observed that when FOIA as to avoid, if desired, UCITA's default rules on the law material is produced, the highest charges are imposed or forum applicable to a licensing agreement. for records having a commercial use.403 Guidance Number 18 B. State Public Records Disclosure Laws Only Maryland and Virginia have enacted UCITA. Even in those states, provisions of UCITA could be held 1. Applicability to Government Data to be preempted by the Copyright Act. Transit agencies As indicated in Table 1, of the transit agencies re- that want to make certain that UCITA does not apply to sponding to the survey, which included private and a licensing agreement with respect to computer infor- government-owned transit agencies, 14 agencies re- mation will want to include a stipulation to that effect. sponded either that they did not know, or were un- On the other hand, there are provisions in UCITA that aware, of any laws that could require them to make may be of interest to transit agencies, which could in- real-time data available to the public, whereas 3 agen- cies stated that there were none. Eleven agencies stated 389 Id. (footnotes omitted). 390 Id. at 100. 397 391 Wigand v. Costech Techs., 2008 U.S. Dist. LEXIS 743 5 U.S.C. § 552(d) (2009). 398 (E.D. Va. 2008) (Unrept) (dismissing the plaintiffs' claims for Id. breach of warranty under UCITA but not addressing whether 399 Id. the claims were preempted by the Copyright Act). 400 Id. § 552(f)(1) (2009). 392 Tussey, supra note 272, at 326 (noting the argument that 401 Gellman, supra note 8, at 1032 (citing Baldridge v. "UCITA expands the power of information providers to control Shapiro, 455 U.S. 345, 350 n.4, 102 S. Ct. 1103, 1106 n.4, 71 L. information use through enforcement of restrictive license Ed. 2d 199, 206 n.4 (1982) (noting that there was no provision terms"). in the FOIA for releasing information but swearing all users to 393 UCITA, pt. V. secrecy)). 394 Tussey, supra note 272, at 339. 402 5 U.S.C. § 552(b) (2009). 395 Razook, supra note 366, at 664. 403 Gellman, supra note 8, at 1031 (citing 5 U.S.C. 396 Tussey, supra note 272, at 330 (footnote omitted). § 552(a)(4)(A)(ii)(I) (1988)).
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33 that they possibly could be required to make real-time terest";408 however, such an approach may have limited data available pursuant to a FOIA or FOIL request. Of utility for "copyrighted compilations [that] are large in the transit agencies reporting that they collect real-time size and electronic in format...." 409 data, 29 stated that they had not had any requests for As for whether an electronic data feed, for example the release of real-time data, 3 had received requests, by an AVL system, is a record for the purpose of a pub- and 2 agencies did not respond to the question.404 lic records disclosure law, in general FOIAs and FOILs now apply to government information and data in elec- Table 1. tronic form.410 Under New York's FOIL, for example, all Transit Agencies Reporting Requests for Their agency records must be released to a requester unless Real-Time Data they fall under one of the specific exemptions stated in the law that are similar to those in the Federal FOIA. Under New York's FOIL, "any information kept, held, Transit Agencies Receiving No Requests 29 filed, produced or reproduced by, with or for an agency for Real-Time Data or the state legislature" constitutes a record.411 A record Transit Agencies Having Received 3 may be in the form of a document, file, book, photo- 412 Requests for Real-Time Data graph, drawing, computer disk, or tape. However, an agency is not required to create a record if the record does not exist at the time a request is made.413 One of Three agencies responded that they had had such the exemptions under the New York law is for records requests; however, none of the three requests were that "if disclosed, would jeopardize an agency's capacity FOIA or FOIL requests. In follow-up interviews with to guarantee the security of its information technology the three agencies, one agency reported that it had re- assets, such assets encompassing both electronic infor- 405 ceived one request for live GPS data. The request was mation systems and infrastructures."414 from an individual who wanted to create an application It has been held that a municipality may not avoid that would allow him to use a handheld device to track liability under its state's open records law through con- a specific bus. As a rider, he wanted to be able to de- tracts, for example, with independent contractors re- termine when his bus would arrive at a stop. Although sponsible for collecting and maintaining and otherwise the agency states that it would like to have made the having custody of records on behalf of the municipality. data available, presently the agency is unable to extract WIREdata, Inc. v. Village of Sussex415 involved Wiscon- live GPS data from its routing software system. sin's open-records law and WIREdata's request to three The second agency explained that it had agreed to municipalities to provide information about their prop- provide a real-time data feed to an individual who erty assessments, information that WIREdata conceded wanted to provide the information without charge, that it planned to market and sell to assist real estate along with information from other transit agencies, on agents and brokers.416 The municipalities had contracted the individual's Web site. with private, independent contractor assessors to com- The third agency, which already shares real-time plete their property assessments. Two of the munici- data in a wide variety of ways, explained that it had palities were asked "to provide the data to the company received a "generic" request from several sources for in an `electronic/digital' format."417 WIREdata's initial information regarding on-time bus performance, but the request to the third municipality did not specify a for- request was not a FOIA-type request. 418 mat. Thereafter, WIREdata asked the independent In any event, all 50 states have enacted their own contractor assessors for the data they created and FOIA or FOIL pursuant to which individuals may ob- maintained in a computerized database.419 The munici- tain records of state and local government agencies and palities provided the data in a PDF format, a format departments.406 If any form of real-time data is copy- that did not satisfy WIREdata with respect to its in- rightable, state law must be consulted because how the tended use of the data. laws "are drafted may affect the terms of a state's copy- Although the case involved a number of issues, the right interest or whether a state can be deemed to have 407 placed its documents in the public domain." One 408 Id. at 1034. source suggests that by allowing the inspection of re- 409 cords but limiting copying, it may be possible "to apply Id. at 1035. 410 an open records law and still preserve a copyright in- Bloom, supra note 150, at 9, n.13 (2006). 411 N.Y. PUB. O. LAW § 86(4) (2009). 412 Id. 413 404 Id. § 87 (2009). One agency responding to the survey did not say whether 414 it had received a FOIA or FOIL request. Id. § 87(2)(i) (2009). 415 405 Interviews conducted Jan. 19, 2010. 310 Wis. 2d 397, 751 N.W.2d 736 (2008). 416 406 Bloom, supra note 150, at 9, n.11. Id. at 407. 417 407 Gellman, supra note 8, at 1035 (citing John A. Kidwell, Id. 418 "Open Records Laws and Copyright," 1989 WIS. L. REV. 1021, Id. 419 1030 (1989)). Id.
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34 court held that under Wisconsin's open-records law, a 2. Whether an End-User Agreement May Be Required municipality's independent contractor assessor is not an Before Disclosing Government Data authority within the meaning of the open-records law; One issue is whether a government transit agency thus, the assessor was not a proper recipient of an open- would be able to protect its real-time data from disclo- records request.420 On the other hand, the municipalities sure under a FOIA or FOIL and thereafter from being could "not avoid liability under the open-records law by used for a commercial or other purpose. First, the cases contracting with independent contractor assessors for discussed below hold uniformly that even a copyrighted the collection, maintenance, and custody of property compilation (e.g., a database) must be disclosed unless assessment records."421 Because the municipalities had disclosure is precluded by a specific exemption. Second, provided the information, albeit in a format that could in the cases located for the digest, in every instance the not be manipulated and used as WIREdata desired, the courts required that the database be disclosed to the municipalities were not liable under the open-records requesting party even if the requester had a commercial law. 422 motive. Third, the cases are divided on the issue of The municipalities fulfilled their obligation when whether a public agency may require the requester to "they produced PDFs with the requested information 423 sign a contract, i.e., an end-user agreement, to prevent and gave those files to WIREdata." The court stated further distribution or use of a database by a requester that or others. despite the fact that the PDF files did not have all of the In Microdecisions, Inc. v. Skinner,426 involving geo- characteristics that WIREdata wished (that is, WIREdata graphic information systems (GIS) maps, the court held could not easily manipulate the data), the PDF files did that a county's property appraiser could not require fulfill WIREdata's initial requests as worded. In addition, the records requested were offered to WIREdata, by all prospective commercial users of the records created in three municipalities, in written form shortly after its re- his office to sign a licensing agreement as a condition to quests were made, demonstrating good faith efforts to receiving the records.427 Although the court did not hold 428 satisfy such requests quickly. 424 that the county had a copyright in the GIS maps, the Furthermore, Wisconsin's Supreme Court stated court did hold that, under Florida law, "the fact that a that it disagreed person seeking access to public records wishes to use them in a commercial enterprise does not alter his or with the court of appeals' statement that requesters must her rights under Florida's public records law."429 Even if be given access to an authority's electronic databases to there were a copyright in the GIS maps, the Florida examine them, extract information from them, or copy them. ...We share the DOJ's concern, as expressed in its public records law "overrides a governmental agency's amicus brief, that allowing requesters such direct access ability to claim a copyright in its work unless the legis- to the electronic databases of an authority would pose sub- lature has expressly authorized a public records exemp- stantial risks. For example, confidential data that is not tion."430 subject to disclosure under the open records law might be In County of Santa Clara v. The Superior Court of viewed or copied. Also, the authority's database might be Santa Clara County,431 the county demanded, prior to damaged, either inadvertently or intentionally. We are furnishing its copyrightable GIS basemap to a requester satisfied that it is sufficient for the purposes of the open under the California Public Records Act (CPRA), that records law for an authority, as here, to provide a copy of the requester must sign an end-user agreement. In op- the relevant data in an appropriate format. (emphasis 425 posing the request for the database, the county argued added) that the CPRA, which permitted the nondisclosure of Thus, there is some authority that a requestor may 432 computer software (that the county maintained also not be entitled to records in the format of the re- applied to computer mapping systems), also provided questor's choice. Moreover, state law must be consulted that "[n]othing in this section is intended to limit any regarding whether a government or government agency copyright protections."433 The county argued that the may refuse to produce a database or other electronic copyright law protects its compilation of data as a information either because of an exemption under state 434 "unique arrangement." The court observed that state law or because the statute does not require that the law determines whether a public official may claim a information be provided in such a format, possibly for copyright in the works of government entities and that security reasons. 426 889 So. 2d 871 (Fla. 2d DCA 2004). 427 Id. at 872. 428 Id. at 872 n.2. 429 Id. at 875. 420 Id. at 437. 430 Id. at 876 (citations omitted). 421 Id. at 441. 431 170 Cal. App. 4th 1301, 89 Cal. Rptr. 3d 374 (Cal. App. 422 Id. at 443. 6th Dist. 2009). 423 432 Id. at 444. CPRA § 6254.9 (a) and (b). 424 433 Id. at 44647 (footnote omitted). Id. § 6254.9 (d). 425 434 Id. at 447. County of Santa Clara, 170 Cal. App. 4th at 1331.
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35 "`[i]n some states, statutes explicitly recognize the au- "original materials, research, and creative compila- thority of public officials or agencies to copyright spe- tion."444 Furthermore, the court held that the county cific public records that they have created.'"435 The court could restrict the subsequent commercial distribution of concluded, however, that although Section 6254.9 "rec- the data requested by Seago pursuant to the copyright ognizes the availability of copyright protection for soft- law. ware in a proper case, it provides no statutory authority It does not violate FOIA for a public entity to copyright for asserting any other copyright interest."436 specially-created digital data and to restrict subsequent As for whether the county could demand that the re- commercial use as long as the information is provided ini- quester sign an end-user agreement, the court noted tially to the requesting person or entity. If an entity is al- that courts elsewhere had rendered conflicting decisions lowed to copyright the specially-created data, it is logical on the issue. However, the court, agreeing with the that the governmental entity should be allowed to enact Florida court's decision in Microdecisions, ruled that ordinances to restrict further commercial dissemination 445 of the information in order to protect the copyright. the county as part of its disclosure under the CPRA could not require a requester to sign an end-user The court remanded the case for a determination of agreement. The court held that "end user restrictions whether a $100 fee violated FOIA "because there is no are incompatible with the purposes and operation of the evidence regarding what the actual copying costs would 446 CPRA."437 The court held that "[t]he CPRA contains no be." provisions either for copyrighting the GIS basemap or County of Suffolk, New York v. First American Real for conditioning its release on an end user or licensing Estate Solutions447 involved the attempt by the county to agreement by the requester. The record thus must be copyright and control the redistribution of the county's disclosed as provided in the CPRA, without any such official tax maps. Through a FOIL request, First Ameri- conditions or limitations."438 can first obtained and then marketed copies of the tax Similarly, in South Carolina there has been litiga- maps and CD-ROM disks containing the maps without tion concerning the state's freedom of information stat- a license from or consent of the county. The Second Cir- ute and to what extent a government agency must dis- cuit stated that "states and their subdivisions are not close information that it compiles. However, in contrast excluded from protection under the Act" and unless to the courts' decisions in County of Santa Clara v. The they were prohibited from doing so by a specific state Superior Court of Santa Clara County and Microdeci- law may seek to copyright databases under their con- sons, Inc., the South Carolina Supreme Court agreed trol.448 The court held that the state's FOIL did not ab- that an end-user agreement could be required by the rogate the county's copyright in its tax maps, that the county. county could comply with its FOIL obligations while In George H. Seago, III v. Horry County,439 the preserving its rights under the Copyright Act, that the county's geographic information department developed county's tax maps had enough originality to withstand a digital database to combine several layers of informa- a motion to dismiss for failure to state a claim, and that tion onto one digital photographic map of the county at the tax maps could not, as a matter of law, be deemed to 449 a cost of $7.5 million.440 A real estate company made a be in the public domain since their inception. request for the digital photographic map for its Web site for the use of its customers.441 Later the company re- 3. Whether Real-Time Data Are a Trade Secret Not quested full-county coverage of certain GIS data. The Subject to Disclosure county notified Seago that it claimed a copyright in the In Dir., Dep't of Information Technology of the Town information and would provide it only if the requester of Greenwich v. Freedom of Information Comm'n, the 450 paid a $100 fee and signed a licensing agreement re- Supreme Court of Connecticut rejected the claim of the stricting "any further commercial use without prior Department of Information Technology (DIT) that the 442 written consent." disclosure of GIS data would reveal a trade secret for The Supreme Court of South Carolina agreed with which the Connecticut statute provided an exemption: the Second Circuit in County of Suffolk, New York v. First American Real Estate Solutions,443 discussed be- 444 Seago, 378 S.C. at 424. low, that the county could obtain copyrights and that 445 maps could be copyrighted to the extent they contained Id. at 42425 (citation omitted). 446 Id. at 429. The court also held that although federal dis- trict courts have original jurisdiction to hear any civil actions 435 Id. at 1331 (citation omitted). arising under any Act of Congress relating to copyrights, the 436 "mere fact that a case concerns a copyright does not necessarily Id. at 1334. 437 mean that the case comes within the exclusive jurisdiction of Id. the federal courts," the court noting that many disputes over 438 Id. at 133536. copyright ownership arise under state law. Id., 378 S.C. at 426, 439 378 S.C. 414, 663 S.E.2d 38 (2008). 663 S.E.2d at 44. 440 447 Id. at 419. 261 F.3d 179 (2d Cir. 2001). 441 448 Id. at 420. First Am. Real Estate Solutions, 261 F.3d at 187. 442 449 Id. Id. at 195. 443 450 261 F.3d 179 (2d Cir. 2001). 274 Conn. 179, 874 A.2d 785 (2005).