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38 of the Town of Greenwich and the County of Santa Based on current case law, as long as real-time data Clara cases, it appears that disclosure was required have not entered the public domain, a transit agency because the statute in question was not broad enough to has a proprietary interest in its data and has the right preclude disclosure and/or because the government to license or sell them. For example, a transit agency failed to demonstrate that public safety or security was may make its data accessible via its Web site but exer- a creditable or verifiable reason for refusing to provide cise control by its terms of use binding users of the site. the requested data. Indeed, a terms-of-use or end-user agreement, a license, or other agreement seems to be the best and possibly Guidance Number 20 only protection for a transit agency's real-time data. If a FOIA or FOIL has an exemption for records the Nevertheless, just as there could be a preemption issue release of which could adversely affect public safety and in regard to provisions of UCITA, discussed in the di- security, a transit agency may have to make a sufficient gest, a preemption issue could arise with an agreement showing that the exemption applies to the data in ques- seeking to protect noncopyrightable data. The majority tion. However, a transit agency could lose the benefit of view seems to be that a private contract regarding real- the exemption if the agency has provided, even sold, the time data would not be preempted. The responses to the data on prior occasions. survey indicate that transit agencies would rely mostly on their contracts to protect real-time data. In respond- CONCLUSION ing to the survey, no transit agency indicated that it would seek to copyright real-time data. It appears unlikely that the copyright laws would be As for noncontractual claims that a transit agency a transit agency's means of protecting its real-time may have under state law, even if real-time data are data. Based on current case law and the position of the not copyrightable, the data, nevertheless, come within Copyright Office as seen in the NYMEX case, real-time the subject matter or scope of the Copyright Act. There- data are not copyrightable. Indeed, facts, such as pure fore, as discussed in the digest, a claim arising under data, are not copyrightable. If there is some originality, state law may be preempted unless a state claim in- even though slight, in the selection and arrangement of cludes an element not present with a claim for copy- data, then a database may be an original work and right infringement. For instance, although real-time copyrightable as a compilation. However, there is no data may qualify as a trade secret, a claim under state copyright protection for the underlying data, which may law for misappropriation of trade secrets could be pre- be extracted freely and copied and distributed by any- empted by the Copyright Act if the state claim is one without infringing the copyright for the compila- merely, for example, for unauthorized copying. In some tion. states, if a transit agency is able to show that the "hot There are several reasons a database produced by an news" exception for noncopyrightable material applies AVL-type system or a computer program would not be to real-time data, a transit agency may have a tort copyrightable. First, although the data may fulfill the claim for misappropriation. However, as explained in Copyright Act's requirement that an original work must the digest, a transit agency could have difficulties mak- be fixed in a tangible medium of expression, such a da- ing a case against a free-rider. Depending on the facts tabase may not have an author within the meaning of of the case, many other claims under state law that the Copyright Act. With an automatic system there is would otherwise apply for misappropriation or unau- no mental creativity or exercise of judgment in choosing thorized use of real-time data may be preempted by the data to be included in a compilation or database. Sec- Copyright Act. ond, for a transit agency's real-time data there may be There are federal laws that create criminal and civil so few ways to express the data that all expressions liability for a person's unauthorized access to com- would be substantially the same. A work is not copy- puters, electronic communications, or stored communi- rightable if there is a merger of an idea and the expres- cations and records. The Federal DMCA, however, ap- sion of the idea. Third, a work may not be copyrightable plies only to copyrighted works. State law may furnish when the expression is determined by industry needs or criminal and civil remedies for unauthorized access to, practice. Fourth, just as facts and data are not copy- copying, or distributing an agency's real-time data or rightable, numbers, short words, and phrases are not for exceeding one's authorization or license for access to copyrightable. Although computer programs may be an agency's data. There is authority holding that such copyrighted, the above rules apply as well to a computer state statutes are not preempted by the federal stat- program designed to collect real-time data. utes. As discussed in the digest, it is possible to copyright Depending on the applicable state FOIA or FOIL, an automatic database and register updates with the real-time data are a record that may be subject to dis- Copyright Office within 90 days. There still has to be closure pursuant to a request even if a requester in- originality in the selection and arrangement of the data tends to use the information for commercial purposes. for the work to be copyrightable. Such an approach, Even a copyrighted database may have to be disclosed however, may have limited utility for a transit agency's unless there is a specific exemption in the FOIA or real-time data. The underlying data, moreover, still FOIL. However, in at least two states the courts have could be copied without violating the copyright. held that a requester must sign an end-user agreement

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39 restricting the further distribution or use of a database. sure, a transit agency may be able to protect its real- Finally, if a public records disclosure law exempts re- time data from disclosure. cords affecting public safety and security from disclo-