The Washington Metropolitan Area Transit Authority is being short sighted in its refusal to make its metro scheduling data free for use. Trying to score a few dollars in ad revenue by losing an opportunity increase the value of their product to consumers? Not the best business strategy. And although bit by bit they’ve been conceding some ground on the issue, they seem set on maintaining control of their transit data for now.

In comparison, the Obama administration appears to be on the right path: http://www.data.gov/. Okay, admittedly, it’s a bit easier for the federal government to take such a step than it is for state level transport agency to do so, as under 17 USC § 105.59 “Copyright protection … is not available for any work of the United States Government.”

(Edited to add: For the record, WMATA is not a federal agency. )

The D.C. government is already on board with governance in the age of wikipedia, with programs like Apps for Democracy and publishing DC city operational databases online.

So what’s the deal with the Metro, then? Why aren’t they trying to encourage this sort of user-driven expansion of their services?

As a policy matter, Metro and other transit agencies should be taking the open source route. There are hundreds of public transport applications out there. The market has shown that it will happily provide them. And this is a best case scenario for consumers — google around until you find an app with good reviews, and spend a few bucks on it.

Refusing to hand the transit data out or giving exclusive monopoly rights to any single company for distribution is 1) unnecessary, as this product is being supplied on the market already, and 2) is also extremely unlikely to result in a better quality service, as the ones out there already appear to be doing a good job. Not to mention, it is obvious that WMATA is never going to get paid for it.

But even if it’s a bad policy, that doesn’t mean they don’t have the legal ability to claim exclusive rights to it.

As every good little law student knows, you can’t copyright a fact. Feist Publications, Co. v. Rural Tel. Serv. Co., 499 U.S. 340 (1922). This isn’t just under the Copyright Act, it’s a constitutionally mandated requirement, under Article I, 8, cl. 8. Congress can only give IP protections where there has been “independent creation” + “modicrum of creativity.”

So can you copyright public transit data or not? Well, that depends — there are a lot of different questions going on here.

The most basic issue is whether transit authorities can “copyright” their scheduling information. But a lot of the issues up for debate right now are getting a bit more complicated than that — it’s not just raw facts that are at issue. The data generated from something like NextBus is different. They’re placing GPS devices on buses to get real time tracking data, and generating predictions about when a bus is going to arrive. That might warrant copyright protection, in the same manner that an article predicting whose going to win tomorrow’s baseball game is protected.

And then there’s another level: even if the predictions on public transit arrival and departure times are protectable, what about the underlying numbers? That is, the actual data streaming from the on-board GPS systems, before any predictions or algorithms are used? On the one hand, the precise location of a bus at any point in time is just a fact. And clearly there’s no duty on a private company to publish such numbers if it gathers them itself. But the question is if this data is already made public, can anyone assert a right prohibiting others from using it?

I’m going to ignore the question about predictive scheduling services for now, and focus instead on the other two issues: the transit agency’s scheduling and routing data, and the real time bus-tracking GPS information.

Under pure copyright law, I think the answer would be “no” for both. Like statistics on rebounds and assists from a basketball game, there is nothing copyrightable about a number or location. So, no copyright. But there are other claims transit authorities could bring.

Only problem with that is that any non-copyright claims will have to survive federal preemption first. In the field of copyright, there’s express statutory preemption of state copyright law in § 301, which gives two requirements. First, for preemption to occur, the work in question must be part of the “subject matter of copyright,”(defined in §§ 102 and 103 of the Copyright Act). The second requirement is the “equivalency” requirement. Under this prong, in order for state law to preempted, the rights asserted under state law must be equivalent to the rights that are provided for exclusively under federal copyright law. Only if both are present is there preemption.

It’s pretty clear the first prong is met. Without going into too many details, the scope of copyright is much broader than what can actually receive copyright protections. Although courts have differed on this point, the general trend seems to be holding that Feist-like collections of facts also fall within copyright’s subject matter, even though protection is clearly not available. And maybe you can call it a ‘compilation,’ in which case it’s clearly in.

For the second prong, you have to look at what right it is the public transit authorities are asserting. The most likely claim they’d bring would be misappropriation. Misappropriation is a mix between unfair competition and quasi-property rights. Misappropriation in this context often gets thrown out for merely being copyright by another name, but here, preemption might be avoided through the hot-news exception from International News Service v. Associated Press, 248 U.S. 215 (1918), which was later clarified in NBA v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997). That gave us a 5 point test, so that the INS exception to federal preemption is limited to where “(i) a plaintiff generates or gathers information at a cost; (ii) the information is time-sensitive; (iii) a defendant’s use of the information constitutes free-riding on the plaintiff’s efforts; (iv) the defendant is in direct competition with a product or service offered by the plaintiffs; and (v) the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.”

The first four are met pretty easily, but it’s the fifth one that really matters. The Motorola court was concerned with situations where the scooping of information by one party would destroy any economic incentive the other party had to collect it, thus creating “the potential lack of any such product or service because of the anticipation of free-riding.” Additionally, under the Restatement Third of Unfair Competition, “In most of the small number of cases in which the misappropriation doctrine has been determinative, the defendant’s appropriation, like that in INS, resulted in direct competition in the plaintiffs’ primary market. . . Appeals to the misappropriation doctrine are almost always rejected when the appropriation does not intrude upon the plaintiff’s primary market.”

So I’d say pretty clear the raw timetable data — already released in the public domain, already released to passengers — is up for grabs free and clear, and the transit agency’s cease-and-desist letters regarding bloggers’ and app programmers’ uses of it are pretty baseless. Selling iPhone apps that do route finding is clearly not the Metro’s primary business, and it’s equally clear that the Metro is going to keep releasing time tables whether or not they can make money off of it.

The real time location data from GPS devices onboard buses is a tougher call — you could at least make a plausible argument there that neither the transit authorities are businesses they contract with would bother to compile that data. So it might qualify under the INS hot-news exception.

This is a pretty rough analysis, though, and there are definitely claims other than misappropriation that might be viable. Some sort of contract action under a clickwrap license in the style of  ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996), could also easily be at play, and then there’s unfair competition claims, such as the one in Morris Commc’ns Corp. v. PGA Tour, Inc., 364 F.3d 1288 (11th Cir. 2004). So it’s not an open-and-shut case by any means, and if it came down to a trial, WMATA’s lawyers wouldn’t be lacking in arguments they could try and make.

-Susan