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.