Legal Arrangements for Use and Control of Real-Time Data (2011) / Chapter Skim
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transit-equipment and operations guidelines, FTA fi- Transit agencies increasingly are taking advantage nancing initiatives, private-sector programs, and labor of technological advancements in the collection and or environmental standards relating to transit opera- distribution of real-time data to provide up-to-date in tions. Also, much of the information that is needed by formation to patrons.
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Whether Real-Time Data Constitutes a Trade Secret, 28 E Licensing of Real-Time Data and the Computer Information Transactions Act, 30 VII.
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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 homechannels 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.
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opyright protection subsists...in original works of United States Supreme Court and lower federal courts, authorship fixed in any tangible medium of expression, it does not appear that real-time data may be copynow known or later developed, from which they can be righted. There is some copyright protection for a dataperceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 16 Murray Hill Publ'ns, Inc.
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tags to track a manuCopyright Act. In Feist, the Court held that although facturer's products after sale concludes that "if the tag "`no one may claim originality as to facts,'"26 a factual is tracking everywhere the item has been, ...then likely compilation could meet the originality test "if it features the compilation will not be held to be copyrightable."35 an original selection or arrangement."27 Nevertheless, More to the point is that in 2007 the Second Circuit the "copyright in a factual compilation is thin."28 The affirmed a district court's decision in New York holding Court rejected a test that had been used by lower courts that real-time data are not subject to the protection of that had held "that copyright was a reward for the hard the copyright laws.
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A database that and transmitted NYMEX's settlement prices, thus free- meets the test of originality may be copyrightable as a riding on "NYMEX settlement prices, reputation, and compilation, but the underlying data would not be pro 46 goodwill each day." In ruling in favor of ICE, the dis- tected by the copyright laws. A database produced autotrict court held, first, that there is no copyright protec- matically by a computer program also may not be copytion for an idea, fact, procedure, process, system, or rightable because there would be no exercise of method of operation.47 Second, the district court held judgment and discretion in choosing which data to inthat, regardless of NYMEX's assertion that the settle- clude in a compilation of data.
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If a process for the selection of data is "too rote and mechanical," a compilation is not subject to the The Copyright Act's "tangible medium of expression" copyright laws.69 Under § 101, the term "[s] election imrequirement is "satisfied if the work as fixed can be plies the exercise of judgment in choosing which facts perceived `either directly or with the aid of a machine or 70 58 from a given body of data to include in a compilation." other devices.'" Also relevant is that under § 101, the term Real-time data appear to satisfy the requirement of "[a]
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Similarly, NYMEX was unable to show that "the range of pos- with respect to computer programs, it has been held sible settlement prices is broad enough" to permit other that if there are "external factors," such as market or expressions of the prices that would not be "substan- industry demands, requiring, for example, that all comtially similar."78 puter programs display specific words on a computer The doctrine of merger is a potential issue also with screen, "the components of that program that provide 85 such a function are not protected by copyright laws." 73 Key Publ'ns, Inc., 945 F.2d at 512 (quoting Robert C Denicola, Copyright in Collections of Facts: A Theory for the 79 Protection of Nonfiction Literary Works, 81 COLUM.
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The copying of a copyrighted work tant, outer months could be copyrighted even if the setpurely for a commercial use is a factor that militates tlement prices for the more recent, higher-volume against a finding of fair use.92 Other factors that are months could not be copyrighted. considered in deciding whether copying is a fair use are To the extent that an agency's real-time data may be the nature of the copyrighted work, the amount of the used to make predictions, there may be an argument copying of the work, and how the use affects the market that such predictions are not the same as the discovery 93 for or the value of a copyrighted work.
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Registration of Automatic Databases with (emphasis supplied) ."109 Real-Time Data Accordingly, the Copyright Office's regulations pro NYMEX was unable to register a copyright in its vide 100 real-time data, its settlement prices.
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