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August 23, 2009

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Chris

"As with people's names and phone numbers, the time a train is scheduled to leave and depart a particular station is a fact." Maybe, but I'm not perfectly sure. Maybe it's more like a promise. Can a contract be copyrighted?

Bruce Boyden

I clicked through some of the links and I'm having trouble finding a clear example where the MTA is raising a copyright claim. There's various references to a license for scheduling updates, which could be about database access; a cease and desist letter sent to Apple, which hasn't been released; and apparently the marketing department referred at one point to the schedules as "intellectual property." Certainly the newspapers and blogs are reporting it as a copyright dispute, but newspapers commonly confuse IP claims. I couldn't find where the MTA's lawyers are maintaining that the schedule information is copyrightable. That's not to say that they haven't, just that I couldn't find it.

Eric Fink

As a former MetroNorth passenger (more years ago than I care to mention), I share Chris's skepticism at the characterization of their schedules as "fact"; more like creative fiction.

Robert Heverly

Chris, I see no reason why a contract couldn't be the subject of copyright to the extent that it's original, which may present a fairly substantial barrier in form contracts, for example, of which this could be one (does the MTA have any original content in its contract for travel services? I don't know, but I would doubt it).

Still, I doubt the MTA would be happy with a "promise" analogy. Do I get my money back if they're late? If a particular train is canceled? Are they responsible for resultant damages (lost job, missed child's event, missed appointment)? Making the schedule into a promise could be problematic for the MTA (as would making it into creative fiction, which I agree may be closer to the truth).

In addition, even assuming we allow the propertization of the contract itself, there are issues with also protecting the facts inside the contract, which remain factual even if embedded in a contract. For example, if you and I make a contract for sale of an Ole Miss trinket that was made in 1915, and we describe it as the "Ole Miss Mini-mascot (1915)", someone who sees the contract is in no way prohibited from "copying" the fact that the mascot was made in 1915. DRM with a contract is probably the only way to try to "lock up" facts (but that's another post).

Bruce, the first story I read on this (aside from Slashdot) was the Stamford Advocate piece (http://www.stamfordadvocate.com/ci_13092323). Down toward the middle, Schoenfeld says:

"[T]he MTA's claim that the schedule information is copyright intellectual property is baseless because the iPhone [using Schoenfeld's application] displays and disseminates the information differently from what the MTA does."

The bracketed part there is mine. Of course that doesn't mean Schoenfeld got it right (especially about his "defense"), but it's the best information we have at this point, and he clearly indicates they've raised a copyright claim. I'll update here if we get different info (I've contacted the EFF and am hoping for an update as things progress). Also, database rights sound either in contract or copyright (the latter being harder to make), so it could still be a copyright claim (contract here would be harder given that he's claiming he doesn't have database access).

Cash

A few years back, didn't major league baseball lose in court when it argued that baseball statistics were their property?

IIRC, they were going after fantasy leagues for licensing fees on the grounds that batting averages and pitchers' records and all the rest belonged to them because they were "produced" by their employees.

I can't remember if the court ruled against them or if they settled when it was clear the judge had a problem with club owners arguing deserve to be paid when you do the math for a batter going one-for-four.

Can't remember if it was a copyright issue of not.

Robert Heverly

Cash, I think you're thinking of C.B.C. Distribution and Marketing v. Major League Baseball Advanced Media, 505 F.3d 818 (8th Cir. 2008) [the U.S. Supreme Court refused to hear an appeal in the case, 128 S. Ct. 2872). The Eighth Circuit's decision is here:

http://www.ca8.uscourts.gov/opndir/07/10/063357P.pdf

And an interesting note in the Harvard Law Review about the case is available here:

http://www.harvardlawreview.org/issues/121/march08/recentcases/CBC_v_MLBAM.pdf

The case focused on the right of publicity of the players (namely, that the fantasy league was using their names and their statistics), and while the Eighth Circuit agreed that their use violated the right of publicity, it held as well that the First Amendment rights of the fantasy league pre-empted the players' claims. As there are no publicity rights at issue here, it's not directly applicable, but what might be is the reasoning behind the court's trumping of the publicity right by the First Amendment. Using language that might be useful to Schoenfeld here, the Court states:

"The Supreme Court has directed that state law rights of publicity must be balanced against first amendment considerations, see Zacchini v. Scripps-Howard Broad., 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977), and here we conclude that the former must give way to the latter. First, the information used in CBC's fantasy baseball games is all readily available in the public domain, and it would be strange law that a person would not have a first amendment right to use information that is available to everyone."

Looks like pretty broad language that could be used to blow an awful lot of copyright protected information out of the water, but in specific cases it could prove useful.

In addition, the Second Circuit's decision in 1997 in National Basketball Ass'n v. Motorola, Inc., 105 F.3d 841, is probably also relevant. That's the case in which the NBA sued Motorola for sending in people to report live scores that Motorola then sent out to AOL and to pager owners who had subscribed to the service (called SportsTrax). The Court held:

"We agree with the district court that the “[d]efendants provide purely factual information which any patron of an NBA game could acquire from the arena without any involvement from the director, cameramen, or others who contribute to the originality of a broadcast.” 939 F.Supp. at 1094. Because the SportsTrax device and AOL site reproduce only factual information culled from the broadcasts and none of the copyrightable expression of the games, appellants did not infringe the copyright of the broadcasts."

Decision here: http://www.law.cornell.edu/copyright/cases/105_F3d_841.htm

That is, even where a broadcast in which facts are contained is protected by copyright, facts within the broadcast are not, and can be freely used.

In our case, even if the MTA has some colorable copyright claim to layout, design, etc., I am still pretty convinced train schedules are made up of facts (even if they often play out as fictions in the real world of train arrivals and departures), and that even if we give them some rights in the schedule, the First Amendment may preclude any action they'd like to take to try to vindicate those rights.

Honestly, I'm still wondering what they were/are thinking.

Dave

This case isn't really so unusual. Lots of producers of guides and directories sue when their information is used without a license. Off the top of my head, there are cases involving phone books (after Feist--yellow pages, I believe); medical charts; stock values; and baseball card prices.

Some of these cases are hard and others aren't, and I think the MTA case (if it is in fact about copyright) seems like an easy case for the defendant. I don't think it's hard, though, to figure out what the MTA was thinking: they're trying to control the use of information they produce and to extract value from that information, just like countless other owners. The impulse toward control and the desire for profit don't necessarily make for compelling cases, but they do provide a ready explanation for what causes the producers of directories and the like to bring shaky (C) claims.

Chris

My point wasn't that a schedule would itself be legally enforceable, but merely to suggest a possible distinction between a commitment, legally-binding or otherwise, and a fact. If contracts--statements about one's commitment to do things in the future--are *ever* copyrightable, then there must be a distinction between a commitment and a non-copyrightable fact. Otherwise, a purported infringer could say, "I'm just conveying information about the fact of your commitment, and that's not copyrightable."

Robert Heverly

Dave, Yellow Pages are tougher. There is likely to be arrangement by category, something that doesn't exist in the white pages, the categories could conceivably involve some modicum of creativity, and if I recall correctly, the courts often disagree on them (I can at least think of the argument that they might be different from Feist).

If for baseball cards you're referring to the TOPPS/Upper Deck dispute (no other comes to mind, but it is early), I thought that case had much more in the way of the claims relating to the Lanham Act and the right of publicity, but I could be remembering incorrectly. And yes, I agree, it's easy to see what the MTA was thinking in a basic way, but it's hard to figure out how a lawyer could pursue that line of thinking by trying to make an argument that these are somehow protected by copyright, and thus my perhaps overstated rhetorical flourish (though perhaps they're making an alternative IP claim that hasn't been made public).

Chris, I see the distinction, but I would argue that contracts are copyrightable in terms of the expression of the commitments, not as to the content of the contractual commitments themselves. If I make a commitment to pay you "if the weather is so hot that you can fry an egg on a stone, if frogs boil in the ponds, or if the temperature reaches 100 degrees fahrenheit," I might be able to make an argument that someone who copies that sentence for use in another contract has violated the copyright in my original expression. If someone is writing about our contract and describes the terms, then the use of the language might be fair use, but I wouldn't call what was taken a "fact" in the copyright sense (though it may be a fact in the contractual sense, which is a bit puzzling).

If contract terms would somehow become facts when used this way, then your argument seems correct that this would turn everything into a fact, and that can't be right; the same would then have to be true for a fiction novel that was "described" (though Warner Bros. v. RDR seems to indicate this might ok, as well, depending on usage -- ie, in a book about the books might be ok as opposed to a sequel or follow-up book involving the characters in the first book).

Google, as an aside, denies paying licensing fees for the data it gets from the MTA:

http://greatergreaterwashington.org/post.cgi?id=3279

Very interesting discussion, thanks for contributing (and please don't stop if you have more to say).

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