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Should WMATA agree to Google's license terms?

Previously, we noted that Google Transit in the DC region has stalled, and discussed Metro's license terms. While Metro has released data under a license, Google isn't willing to accept Metro's license, and is instead waiting for Metro to agree to their terms. Are Google's terms reasonable? Should Metro sign the agreement as is, or negotiate further?


Photo by buckofive.

We don't completely agree on this question, so we've structured this article as a point-counterpoint. Below is Michael's opinion; David's response follows.

Metro should sign Google's agreement

by Michael Perkins

Google's boilerplate agreement is very simple, for a legal agreement. Google asks for a royalty-free license to actually use the data. The agreement defines how a transit agency makes its information available and keeps it up to date. It allows Google control over the "look and feel" on Google's site.

Metro also warrants that it has the power to enter this agreement, and that it's not violating any copyrights or patents by letting Google use the schedule data. As an information service provider, Google needs to be reasonably assured that when they use copyrighted content or trademarks, they are using them with permission or making a fair use. If another entity provides the content under a license, Google need assurance that that party has the legal capability to do so. The surest way of doing this is to require that the other party be financially responsible if they're wrongto "indemnify" Google.

Google also requires Metro to indemnify them against any other lawsuits arising from Gogole's use of the transit data. Contrary to what I thought before, it doesn't look like they're concerned about being sued if the data is wrong. There's a general disclaimer in the Google Maps terms of service that protects both Google and Metro against any inaccuracy in data.

Other terms limit liability, establish a mutual confidentiality agreement, and provide for terminating the agreement. This is all pretty standard for a legal agreement between two companies that might want to do business.

In my opinion, Google's terms are reasonable. They have to deal with hundreds of transit agencies. It doesn't make sense for Google to negotiate individual agreements with those agencies. It also would not make sense for Google to allow various transit agencies to have some sort of prior approval or veto power over the look and feel of their website. Negotiating how the data is displayed with hundreds of organizations would not be feasible. Other terms like how to terminate the agreement, or providing for confidentiality do not appear to be objectionable.

So either Google budges and signs Metro's "take it or leave it" agreement, or Metro budges and signs Google's. There doesn't seem to be much of a compromise position between them. Metro is accountable to local governments, who are accountable to the transit riders who are clamoring for Metro to partner with Google. Google is accountable to executives and shareholders, who are not likely to make an exception for one transit agency when they have been successful in obtaining agreement from the vast majority of the transit agencies in the US and many agencies abroad.

I also heard from sources in the transit industry that Metro is concerned about losing revenue from their website, which includes a trip planner. From various sources I've heard that the amount at stake is anywhere from around $70,000 to $200,000 per year. This is essentially a rounding error in Metro's budget of almost $2,000,000,000 ($2 billion) per year. According to my discussion with Bibiana McHugh of Portland's TriMet, the agency that first pioneered Google Transit, they have not seen a decrease in traffic to their website after partnering with Google, but instead they've seen many visitors driven to their website by links provided within the Google Transit service.

It hurts Metro's riders more to not be a part of Google Transit than it hurts Google to have almost every other transit agency in the country except Metro.

Metro should negotiate the best terms from Google it can. It should work with Google to upgrade the specification to allow time-based fare information. Then, it should sign the agreement Washington area transit riders can enjoy the benefits Google Transit.

Metro stated that they would provide comment after publication.

Metro should leave it; Google should take it

by David Alpert

We don't know exactly what the sticking point is between Google and Metro. If Metro is holding out for some revenue, then I agree with Michael that they need to drop the issue. Just as it wouldn't be appropriate to charge money for people to look at the bus map, so is it inappropriate for Metro to try to monetize the schedules. It's public data from a public agency. We're all entitled to know when and where buses and trains will stop.

It's also in our region's best interest to make it as easy as possible for people to find information on as many types of technology as possible. That means letting anyone build an application, whether they're a multibillion-dollar company or a guy in a garage. Putting the data online for free is the best way to encourage innovation. And anyone who builds something useful to riders is furthering Metro's mission.

However, if the sticking point is indemnification, then both agencies need to give in. As Michael argued before, it's silly for Metro to demand that a guy in a garage who hacked together an iPhone application pay for all attorney's fees and any settlement if someone decides to sue WMATA over something in the application. At the same time, though, it'd be wrong for Google to demand that Metro pay all of their costs if someone sues Google.

The copyright and trademark indemnification makes sense. Unfortunately, record companies have pressured Congress to keep increasing the penalties for even small copyright infringements, so that if Google broke an IP law, they could suffer huge costs way out of proportion to the harm. But we know Metro can promise Google that Metro has the rights to Metro's logo. That's not the issue.

The other indemnification, on the other hand, doesn't make a lot of sense. Google does have a disclaimer on Google Maps denying responsibility for anything a user might do based on the information there, but that doesn't stop frivolous lawsuits. Google will just have to defend itself against frivolous lawsuits. They already do that all the time.

Instead, Metro should provide the data under "take it or leave it" terms. Here's the data. Use it, don't use it, it's up to you. And Google already takes data under those terms. They take Greater Greater Washington's data to include in their search engine, for example. We don't have to sign an agreement indemnifying them. Some people have sued Google over the content of their search engine because they weren't happy with the results. Fortunately, those people lost. Google, or anyone else, ought to be able to grab some data off the Web and make a search engine without needing permission for everything.

Everyone benefits when information gets shared without complicated legal agreements. If only big companies with lots of lawyers can negotiate to use information, then the little guy can't keep up. Ideally, Google wouldn't be negotiating all these agreements; instead, all transit agencies would just put their data on the Web, and anyone could use it. But transit agencies are used to dealing with big suppliers that have big legal departments and negotiating agreements over everything.

Google has a lot of lawyers too, and I don't believe it's too hard for them to adjust the agreement. In fact, I have absolutely no insider knowledge about this, but I suspect they already modified some of the agreements with other large transit agencies like New York City's. My guess is that the indemnification isn't the sticking point in the negotiations, anyway.

What should Metro do? It's simple. They need to release their data with no complicated terms, with no price tag, and with no indemnification requirement. Then, the ball's in Google's court to accept the "take it or leave it" data. If Google doesn't take the data under those circumstances, we can run a letter-writing campaign pressuring Google to give in. But I suspect it wouldn't ever come to that.

Michael Perkins blogs about Metro operations and fares, performance parking, and any other government and economics information he finds on the Web. He lives with his wife and two children in Arlington, Virginia. 
David Alpert is the Founder and Editor-in-Chief of Greater Greater Washington and Greater Greater Education. He worked as a Product Manager for Google for six years and has lived in the Boston, San Francisco, and New York metro areas in addition to Washington, DC. He loves the area which is, in many ways, greater than those others, and wants to see it become even greater. 

Comments

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Please stop using IP as the lens of analysis of Metro's schedule data. As a federal or quasi-federal agency, Metro should not hold any intellectual property interests in anything. Even if it it isn't a federal agency, as a matter of public policy it should not hold intellectual property over a schedule, which -- like a telephone directory -- should not be subject to copyright.

Someone should also look into whether Metro, as a federal or quasi-federal agency, enjoys sovereign immunity. If so, the entire indemnification clause is garbage language inappropriately imported from the private sector.

The Obama administration is able to publish huge tracts of data freely at Data.gov with nary a licensing clause in sight. Metro is behaving like some kind of corporation when it should be what it is: a public agency acting in the public good. Enough with this "business model" crap. Metro should be looking into how making the data freely available will save them money AND benefit commuters. Win Win Win.

by Anderkoo on Jul 28, 2009 3:05 pm • linkreport

Metro is an intra-state compact between DC, Maryland and Virginia. Under Maryland law (Public Information Act) public agencies AND CONTRACTORS are required to disclose public information with the usual restrictions on personal and private information.

by Cullen on Jul 28, 2009 3:30 pm • linkreport

WMATA is not the federal government. They have their own public access to records policy, which allows them to decline to release information for free if they already offer that information for sale to the public.

And those issues about whether it's in the public interest to make this information available get to be decided by Metro's Board of Directors, who are among the people we're trying to convince with these articles. I would love for them to treat this information as if it's owned by the public. But they don't.

Metro claims sovereign immunity explicitly in their license agreement.

by Michael Perkins on Jul 28, 2009 3:40 pm • linkreport

Why can't the publicly elected board members force Metro to sign an agreement with Metro? I'm sure there must be a reason for this happening by now.

by Joshua Davis on Jul 28, 2009 4:46 pm • linkreport

The simplest fix to lots of Metro's problems is make WMATA's Directors elected by the voters. That should create some accountability, which is sadly lacking now.

by Chuck Coleman on Jul 28, 2009 7:04 pm • linkreport

Google also requires Metro to indemnify them against any other lawsuits arising from Gogole's use of the transit data.

You think WMATA is being unreasonable because it wants indemnification from Google. Meanwhile, Google is being reasonable in its indemnification clause. So it is reasonable for Google to seek indemnification from WMATA, but it is not reasonable for WMATA to seek indemnification from Google? It is reasonable for a highly profitable private entity to seek indemnification from a public entity, but it is unreasonable for a public agency which is funded by taxpayers rich and poor and that has rolling stock over thirty years old to seek indemnification from the rich private company?

Wow. I mean, that's all I can say. Wow.

by Omari on Jul 28, 2009 8:23 pm • linkreport

@Omari: the indemnification WMATA is asking for is much broader than the one Google is asking for, and Google's terms of service make it perfectly clear to the final customer that neither they nor WMATA will be held liable for any use of the data. On the other hand, WMATA's indemnity clause is very general.

If we could get a deal as David suggests, with no indemnity either way, I'd advocate for that. Personally, I don't see that happening. I think Google puts out the standard agreement and they've found willing partners.

I'm waiting for the result of FOIA requests to San Francisco and NYC to see what those large agencies were able to get. Maybe David's right and they got a different deal. My guess is not.

If you agree with David, please write to your representative on the board and ask them to get WMATA to loosen the terms on the developer agreement. If you agree with me, write to them and ask that they go ahead and sign the Google agreement. If you agree with neither of us, write to them anyway with your suggestion.

by Michael Perkins on Jul 28, 2009 11:38 pm • linkreport

If google wants its own special license, then perhaps they should act the part of a private company and *gasp* offer to pay for the data that will attract customers to their advertisers. I don't understand how google's give it to us for free this way or we won't republish it with ads is turned into the good guy.

Maybe if metro wanted to deal w/ google, they would tell google to release an api for all of transit. But then again that would allow people to view transit outside of google's control

by Mike on Jul 29, 2009 9:06 am • linkreport

What does Google Transit give back to Metro as part of the arrangement ? Metro should require that Google give back usage stats, or revenue figures, or something. Why should Metro give Google something without any reciprocity ? Last I checked, Google can index the entire internet without anyone's help, why can't they compile schedule information for WMATA on their own dime. Then they wouldn't need to sign a license they don't like.

by Alex on Aug 7, 2009 12:13 am • linkreport

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