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MTA struggling in an age of open information

by Benjamin Kabak


When I first came up with the idea to begin this blog in November of 2006, I brainstormed a name that I could spell with subway bullets. I wanted to relate the name of the blog to the subway and express that through an easily recognizable image. The current name and above banner were the end result of my brainstorming.

At the time, I didn’t realize that the MTA had trademarked the subway bullets and that I had run afoul of their trademark. Nearly 20 months after starting this site, I received a letter — in the form of a comment on a post that was at the time three weeks old — from the MTA’s Senior Associate Coounsel (sic), as he spelled it. In the initial letter, Lester Freundlich told me that I couldn’t use the image of the MetroCard in a blog post reporting on a MetroCard and that I couldn’t use the subway map. He didn’t even complain about my using the subway bullets; that issue came up later on.

Eventually, I worked out the issue with the MTA’s Marketing and Advertising department. I had to change the image, as you can see from the current one evocative of the Massimo Vignelli-designed subway signs, and I had to add a disclaimer to the site. As the use of the MetroCard image was a fair use, I was in the clear. All’s well that ended well for me.

I’m not the only person though that Lester Freundlich and the MTA legal department has contacted over the last few months. Two stories — one involving a Metro-North blogger and his iPhone application and one involving someone in San Francisco — raise some serious questions about how the MTA enforces its intellectual property rights and how prepared the MTA is for a digital world.

StationStops and an iPhone Application

Chris Schoenfeld is a Metro-North commuter and a web programmer. (Disclaimer: He’s also one of my advertisers.) In 2006, he started the Metro-North blog Station Stops, and in 2007, he wrote an application with the Metro-North schedule data. The MTA hasn’t yet figured out the digital world, and Schoenfeld’s application filled an obvious niche.

Over the years, Schoenfeld had, as I did, ran afoul of some of the MTA’s intellectual property rights. He had employed some copyrighted images of MTA property. At each turn, he removed them as requested.

In August, the MTA stepped up its campaign against Schoenfeld. In its original dealings with Schoenfeld, the MTA claimed that Station Stops was presenting itself as an official MTA site. That claim is, quite frankly, laughable. Schoenfeld’s site doesn’t resemble an MTA site, and it’s clearly a journalistic blog. A few days later, they seemingly dropped this complain but ordered him to cease selling the iPhone application. This charge rested on the claim that the MTA owns the copyright to the schedule data and that Schoenfeld’s use of the data violates that copyright.

Now, as with any legal dispute, this one did not materialize out of thin air. Schoenfeld and the MTA had been in discussion to make Schoenfeld a licensee of the MTA with permission to use some MTA marks and better access to the scheduling data. As it stands now, Schoenfled has to compile the Metro-North scheduling data and send it to another programmer who compiles it for use in his application.

The sticking points in the licensee disputes concerned past royalties and access to the scheduling data. According to the MTA, Schoenfeld wanted schedule updates more frequently than the MTA could provide them, and the MTA wanted a $5000 licensing fee and royalties back-dated to 2007 when the application first went on sale. While the MTA claimed the $5000 fee was standard, Google denied paying for schedule data for integration into their Google Transit offerings.

When these licensing talks broke down, the MTA broke out its legal guns. There is, however, one problem with their argument: It has no basis in legal reality. As the Supreme Court held in the seminal case Feist Publications v. Rural Telephone Service, 499 U.S. 340 (1991), pure facts are not copyrightable, and train schedules have long fallen under this rubric of pure fact. The MTA can claim a copyright on the presentation of its train schedules, but the train schedule information itself falls under Feist. Any lawyer who has taken a basic copyright course, as I am right now, would recognize this reality.

Since this dispute has erupted, Schoenfled has received coverage from a variety of news outlets. A few weeks ago, Heather Haddon with amNew York found an LIRR application also under fire (as well as numerous transit agency that have opened their data to all). Still the MTA fought on.

On August 31, Apple removed the application from its store. The MTA alleged that the application “infringes on MTA’s statutory and common law intellectual property rights” and purported to represent the authority. None of those claims are true as I understand the facts of this case and legal precedent.

While the application remains unavailable, Schoenfeld has received support from legal organizations and local politicians. The EFF has, obviously, come out in support of Schoenfeld. City Council member Gail Brewer, in a letter that bashes the MTA’s current sub-par mobile offerings, calls upon the authority to make its data open for all developers.

Schoenfeld’s latest update seems to suggest a light at the end of the tunnel. The MTA is now asking for reduced royalties but is playing tough on its disclaimer language. In the end, this issue will probably get resolved, and the application will be available for sale.

In the end, though, the MTA comes out looking bad, and their antics could fall under what some copyright scholars term copyfraud. They are asserting copyright in data that isn’t copyrightable, and they are making legal allegations based on these false claims that go well beyond what they could assert as a matter of law. We’ll return to this in a minute.

SF Muni t-shirts and the MTA

While the MTA was battling with Schoenfeld, their intrepid legal department found time to harass someone in San Francisco selling SF Muni-related t-shirts featuring the logos shown above. Joseph Moore had made these shirts to express his displeasure with Muni and offered them for sale via CafePress. In late August, Moore received a cease-and-desist from, of all people, Lester Freundlich at New York’s MTA.

According to CafePress, the MTA had asserted that Moore’s “use of the subway route symbols and/or other subway imagery infringes upon [its] intellectual property rights.” Apparently, Lester Freundlich is under the impression that every depiction of a letter in a colored circle falls under the MTA’s trademark. Never mind that Moore was using Muni circles and that he was located in San Francisco.

The MTA has since backed down in its claims against Moore. The designer, however, is no longer offering his shirts for sale on CafePress, and as far as I know, the MTA legal department has not withdrawn its erroneous trademark claim with CafePress. In the summer of MTA copyfraud, this is one egregious story.

Moving forward in a digital era

When all is said and done, this unpleasant tale of legal battles and copyright and trademark claims is one more arrow in the quiver of MTA opponents. The MTA, a publicly-funded organization with some private intellectual property rights, is trying to claim ownership over data that isn’t its to own. The taxpayers, some will say, shouldn’t be subjected to this treatment, and while they might be right in principle, the legal issues and the MTA’s need to protect its intellectual property within the contours of the law are not as clear-cut as that conclusion may suggest.

More importantly, though, are the issues these stories raise about the MTA’s internal structure and its willingness to make data available in an easy-to-use format. I’ve written extensively about the MTA’s poor website structure and its even worse mobile offerings. Schedule data on its mobile site is available in PDF format only in some cases, and the mobile web is lacking in functionality. The main site is a mess and hasn’t advanced much beyond its initial incarnation in Oct. 2001.

The MTA should follow the lead of other transit organizations and open up its scheduling data. While the agency is concerned about accuracy and liability by association, properly worded terms and conditions for developers and the use of disclaimers are easy answers to this problem. We live in a mobile world, and these offerings should be out there for all to use. The MTA may own the maps and subway bullets, but they don’t own the train data and scheduling information. We will drag the MTA, kicking and screaming, into a digital era.

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Robert C September 14, 2009 - 1:28 am

There’s obviously no contest about the train schedules, and clearly the MTA doesn’t own the rights to any letter within a colored circle — it’s just laughable that they would go after somebody in San Francisco who isn’t even using MTA bullets. But I’d say there’s a pretty good case to be made that they couldn’t even claim copyright on their own bullet signs. Wikipedia, when using subway bullets for illustration, doesn’t claim fair use but says that each subway bullet is “in the public domain, because it consists entirely of information that is common property and contains no original authorship. Text in a general typeface and simple geometric shapes are not protected by copyright.” (http://en.wikipedia.org/wiki/F.....rans-2.svg) I’d have to agree with them there — I don’t see how the MTA can make the case that there’s much original authorship in a digit inside a circle.

Benjamin Kabak September 14, 2009 - 9:15 am

Wikipedia is claiming no copyright in those images. They’re not talking about trademarks. The MTA has a legitimate trademark registration in the specific colored bullets with a specific letter in them as used to designate subway lines. That’s not a legal overreach, and the MTA had the right to tell me to stop using the bullets. That’s a separate issue from the schedule data.

Cen-Sin September 14, 2009 - 10:14 am

So I can use a different typeface and I’ll be in the clear?

James D September 14, 2009 - 6:24 pm

The MTA hasn’t even been consistent about typefaces. They’ve variously used versions of Helvetica and of Accident Grotesque (there are some k’s and z’s in there, but who cares?). Of course, you could rip off New Johnston from the London Underground Map PDF and wind up two transit authorities at once…

J September 14, 2009 - 8:39 am

I’m still upset that the MTA bullied a fantastic restaurant called “A” at 108th and Columbus, which used to use the A train icon as its logo. The proprietors were so shaken up by the cease-and-desist letter that they didn’t just change their logo but the name of the restaurant, which is now “cAfe,” a sad, bland attempt to hold onto their rightful identity.


Marc Shepherd September 14, 2009 - 8:44 am

It looks like we’ve found the first cost saving of the Jay Walder era: fire the IP department.

Nathanael September 17, 2009 - 9:20 pm

That would be excellent. Knowing Walder, he will probably do it if someone alerts him to the problem.

Heck, we could even get an open GTFS feed.

Peter September 14, 2009 - 8:46 am

Ditto with the unfortunate fellow who opened the “F Line” shop at Smith & 9th Sts several years ago, and was promptly pummeled by the MTA Law Sept.

Ben – Does knocking off such small fy, unable to fund a robust legal defense, establish a formal Legal Precedent or does it merely intimidate similar Mom & Pops?

Benjamin Kabak September 14, 2009 - 9:14 am

Going after the small fries shows that the MTA is defending its IP. Otherwise, as Kid Twist says below, the MTA risks being told in court that they have given up some of their intellectual property rights.

Jim from NY September 17, 2009 - 12:29 am

I see no difference between someone naming his shop “F-Line Bagels” and for example, naming a shop located on third avenue, “Third Avenue Cafe”. Imagine if New York City trademarked its street names – it is ridiculous to even think about that but that is effectively what the MTA has done.

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Kid Twist September 14, 2009 - 9:08 am

As I understand it, you have to establish a history of vigorously defending your trademarks and copyrights, or eventually a court will rule that they’ve passed into general public usage. Going after all the little guys may simply be a way to ensure that if a bigger case comes along, a high court doesn’t decide that the MTA had already ceded control of its intellectual property.

Nathanael September 17, 2009 - 9:21 pm

Nope. You have to vigorously defend *trademarks*. You don’t have to do anything to defend copyrights *at all*, which is actually a problem, because they’re subject to “stealth lawsuits” from people who waited 20 years to sue.

nathan_h September 14, 2009 - 9:19 am

It all boils down to bureaucrats being made to look bad. The MTA would love to sell an iPhone train schedule lookup app of their own, and they probably have something in (endless) development, but between their obstructionist, spelling-challenged legal department and their neglected software department they just can’t get anything done for a reasonable cost. The authority needs to learn to produce a decent web site (fail) before they can even think about building OR commissioning a user application, a basic principle that an amazing number of iPhone-fiddling, software-hating executives in many organizations do not seem to grasp. In the mean time they can save themselves a little dignity and a lot of cost by publishing their data streams and letting the independent software world make good sites and apps around it, which will improve public perception of the system and increase ridership.

Scott E September 14, 2009 - 10:00 am

At Great Adventure this weekend, I saw a machine in a video arcade that allows you to put money on a card to play games. The touch-screen had a familiar black background, white hand-icon, and a “Start” button in a yellow-and-black rectangle with rounded corners in the top-right corner. I commented to my wife that the colors, fonts, and use was exactly like a MetroCard or LIRR/MNR ticket machine. I wonder if the MTA protected that imagery too, or if the vendor who created it (Antenna Software) is free to use it anywhere. Maybe “Coounsel” Freundlich will file suit against Six Flags now.

StationStops September 14, 2009 - 10:05 am

What’s really funny is that most of us developers are fine with giving MTA %10-%15 of our sales for official and updated data (I tried to!) – its just that the contract terms completely suck – they got greedy and were COMPLETELY unwilling to negotiate..

However, its too late now. Most mobile transit developers now know about MTA v StationStops, are familiar with the crappy license terms, and know that MTA switched from partner to litigator in the same phone call as soon as I asked for negotiation of terms.

No one wants to sign a contract with a frivolous litigator, that’s just stupid. You sign contracts with entities which cooperate and are trustworthy.

So, now the only choice we have is to politically, legally, and publicly shame them into getting in line with the rest of the US transit system and deliver the data online for free.

I am 100% sure this will happen.

Informed November 12, 2009 - 10:01 pm

Free as in do not make money from it? I don’t think anyone has issue with that.

The rest of the US transit systems have license agreements which state (links from http://code.google.com/p/googl.....ublicFeeds)

TriMet “All materials published on the Site, including, but not limited to, trademarks, service marks, maps, schedules, arrival information, fare information, photographs and illustrations (collectively, the “Content”), is the property of TriMet unless otherwise indicated.”
BART “BART maintains title, ownership, rights and interest in and to Data”
San Mateo Count Distric Transit “The Transit District maintains title, ownership, rights and interest in and to Data.”
Dallas Area Rapid Transit ” To the extent allowed by the Texas law, commercial use of the materials, including graphics and artwork, contained in http://www.DART.org is prohibited without the written permission of DART”
Washington DC Metro “WMATA maintains title, ownership, rights and interest in and to the Data”

No one disputes the that the information is free, just that you do not own the information and cannot resell it.

Avi Frisch September 14, 2009 - 10:09 am

If the MTA can keep fares down selling merchandise with their trademarks, I do not see the objection to them preventing others from using those trademarks. Whether the SF case made sense is another matter.

James D September 14, 2009 - 6:33 pm

How much profit do you think they make from selling said merchandise? How do you think that compares with the salaries of their IP lawyers? Do you seriously think that a significant proportion of people would stop buying official merchandise from their nice store at Grand Central just because of trademark status?

Regardless of the legal status, the MTA’s behavior is simply asinine. The trademarks simply aren’t worth their registration.

Jim from NY September 17, 2009 - 12:25 am

One recent report I read said the MTA earned a whopping $200,000 from its licensing program. I wonder how much of that was spent registering the trademarks and hunting down so-called infringers.

Jim from NY September 17, 2009 - 12:38 am

The amount they collect does not keep fares down by even a penny. That isn’t even the intent – supposedly the program was supposed to help the Transit Museum but even that is questionable since the MTA does not open its books to the public

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Anon September 14, 2009 - 5:54 pm

Re:Moving forward in a digital era …Actually, let’s go in reverse and start from the beginning. There is an issue which apparently is an open secret that no one is talking about. The government is NOT allowed to copyright information it produces. Please find for me the copyright on http://www.whitehouse.gov or http://www.state.ny.us/ websites on the bottom of the homepage. They don’t exist for good reason. “With one exception, works of the United States government are public domain. 17 U.S.C. § 105. The only exception is for standard reference data produced by the U.S. Secretary of Commerce under the Standard Reference Data Act, 15 U.S.C. § 290e.”

Nicholas Bergson-Shilcock September 17, 2009 - 3:21 pm

You’re correct that the federal government can’t copyright content it produces (though there are exceptions for work created by contractors) but state and local governments can in fact copyright things: http://www.cendi.gov/publicati.....t.html#313

Jim from NY September 17, 2009 - 12:22 am

The MTA is taking the trademarking of its route symbols to another extreme as well. They are now preventing photographers and artists from selling editorially and historically pictures of the subway system if the image includes the route bullet.

Since the 19th Century, both amateur and professional photographers have recorded the dramatic progress of America’s railroads. These images which provide a historical record of our railways and transit systems have been published for many years in books, magazines, calendars and other photographic collections. It is unfortunate that the MTA has chosen to take actions that even the private freight railroads are reluctant to take.

I can understand preventing the sale of merchandise where the route symbol is the primary design element. However I cannot understand their refusal to allow the sale of editorially and historically correct photographs. Unfortunately the logo and route symbol is an integral part of the train. Imagine if every photographer who sold souvenir prints of Times Square had to pay royalties to each and every trademark owner captured in the background of the image.

Nathanael September 17, 2009 - 9:25 pm

….and, that’s another frivolous set of lawsuits. The MTA Law Department is clearly run by idiots.

“Likelihood of confusion” is the legal standard for trademarks. Specifically, this means, are people likely to be confused about *who produced* the product? In a photograph of the subway system, nobody is likely to be confused about who produced the photograph just because MTA symbols happen to be in the photograph. Utter, arrant nonsense.

Tell the commercial photographers to politely reply to the MTA that it has no case and to cease and desist from frivolous threatening letters.

Anon September 17, 2009 - 4:29 pm

Jim, glad you found your way to SAS. However, it’s been proven time and time again here that MTA has been forthcoming about their finances

Jim from NY September 17, 2009 - 5:13 pm

That’s all very nice however it is not nearly as detailed as the reports issued by the Board of Transportation in the 1930’s and 40’s. In the 1930’s the BofT operated the IND subway and later the combined system after the 1940 takeover until the NYCTA was created in 1953. They published volumes of day to day financial information. For example one of the books in my collection covers a 6 month period and consists of over 1,000 pages of detailed financial data.

That is the kind of financial disclosure I would like to see from a public agency. From reading the MTA financials you cannot isolate the net earnings of the MTA licensing program and even if it is worthwhile.

Anon September 18, 2009 - 9:27 pm Reply
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