So what’s the IP value of a metro schedule?

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: 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.

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Why You Can’t Use Google Transit in D.C.

It’d be fair to describe me as somewhat hostile towards intellectual property rights. Intellectual property rights exist only to the extent necessary to ensure that future creators of intellectual property will continue to produce. Full stop. Past creators of intellectual property are entitled to not a bit more; they have no legitimate claim to any profits generated from their works beyond that.

Which is why I hope public transit agencies who are wrongly claiming to posses a “copyright” and other intellectual property rights in their transportation routing and scheduling data lose, and lose horribly.

For the record, not all local governments are behaving this way. San Francisco, Boston, and Portland in particular have all been exemplary in making their public transport data available for free, even linking on their websites to independently created applications, for iPhones or other devices, that provide passengers with updates and route planning information.

Oh, but not the DC Metro. The DC Metro thinks that, rather than providing improved, more useful transportation services, it should be getting paid for the transit data it incidentally generates in the course of operating its trains and buses.

How much do they want to be paid? Apparently enough to justify a half million in investigating what they could be paid! From July,

In the recently-approved budget, Metro staff included a $500,000 item to hire a consultant for “Intellectual Property Valuation” service. A Metro spokesperson said that they were interested in figuring out what valuable intellectual property they have and what it might be worth in the market.

The Metro is concerned with potentially losing ad revenue from their website if they allow outside organization to offer route finding services. And what do they make per a year from their website? Well, last year it was $68,000. As one commenter pointed out, if releasing their transit data recruited a mere 88 new passengers, it pays for itself. That’s even assuming the WMATA somehow lost all of its web traffic as a result.

Greater Greater Washington has a great take down of the Metro’s refusal to make their data available, stretching back to the beginning of the wrangling with Google Transit. Check out the latest update here:

Metro’s real business is transportation. The ad revenue is a nice sideshow, but it shouldn’t trump convenience to riders. Wilson was arguing that Metro should not help riders in order to force them to use the Web site against their will, all to protect this tiny sliver of revenue. Why not charge for the trip planner entirely? Should Metro promulgate a new policy that every train will pause for 15 seconds after it reaches a station and before the door opens, in order to force riders to look at the ads on the walls? What’s the difference?

The WMATA does now make its data available online, for not fee, but with a ludicrously restrictive license. Note that “WMATA maintains title, ownership, rights and interest in and to the Data.” What ownership rights would these be? Well, it’s not going to be trade secret if it’s publicly released. It’s not trademark. It’s certainly not patent. So what is it?

Apparently, copyright. Next up, a glance at whether Metro has a legal leg to stand on.