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Posts about IP


A copy of DC's laws is now free and open

After open data advocates pointed out how ridiculous it is that private companies have a copyright on the only publicly-available versions of DC's laws, DC Council General Counsel David Zvenyach helped make a public domain version and posted it online.

Photo from BoingBoing.

Tom MacWright explained the problem last month. DC, like many governments, contracts with a company (in this case LexisNexis) to compile all of the laws and keep them updated as they change. They post the laws online, but with licenses that restrict your rights to reuse the information, even though it's the public law.

Rather than ignoring the problem or issuing silly legal threats against people who were digitizing the code without permission, Zvenyach worked with the advocates to create a version of the code free of these restrictions.

Mike Masnick writes at TechDirt:

Part of the issue was that the only digital copy of the code that they had was the one given to them by West, and it contained a variety of extraneous information that was West's IP, including West logos on each section of the law (representing many thousands of copies). Zvenyach had Joshua Tauberer come by and spend a day removing every bit of West IP from the document and quickly releasing a downloadable copy of the DC Code with a CC0 public domain license.
Tom MacWright notes that this is just one step:
There are a few things that this isn't: it isn't the official copy of the code, and lawyers would be ill-advised to cite it alone. It isn't up-to-date—the council is fast-moving and this is just a snapshot. In time we'll fix these problems too.
What can people do with an open source set of DC laws? We can think of a lot of things, but the best part is when people do things we don't think of. Some commenters on MacWright's post wondered why this matters; can't you just find the code on the existing website? Yes, you can't link directly to a part of the code, and can only download pieces in Microsoft Word, but so what?

So what is all the ways someone could build better tools to make it easier to find the laws. Someone already made a tool that's for some purposes better than the official site. Or people could write automated programs to compare the laws on some topics, like yielding to pedestrians, to those in other states. (Hey, that would be a great idea! Has someone done that yet?)

Do you have ideas or want to implement some? MacWright is organizing a hackathon on Sunday. If you build something neat with the code, let us know and we'll show it off here.


DC's laws aren't yours

There's a deep, persistent, and crippling problem with the laws of DC: you can't download a copy.

Photo by on Flickr.

Due to a weak contract and a variety of legal techniques, it's not possible to create better ways to read the law or download it for offline access, or even to try to do better than the crummy online portal that serves as its official source.

It also means that it's hard to discuss legal matters online, since you can't link to specific laws—this article about David Gregory has had a broken link to the law in question since 40 minutes after it was posted, months ago.

How the law became scarce

How did this happen? It's a tricky answer of access, ownership, and contracts.

The DC Council writes and publishes bills, which are additions and subtractions to the law itself. The law is compiled by a contractorpreviously WestLaw, now LexisNexis. So the contractor holds a complete copy of the law.

The contractor publishes a few different versions of the "compiled law," each of which with restrictions:

Unfortunately, courts have upheld these types of restrictions in the CD and website Terms of Service. They get further support from the wire fraud statute, which prosecutors used in the Aaron Swartz case to escalate charges to felonies. And in all of these versions, the contractor tries to claim copyright through compilation copyright and additional content like citations and prefaces.

In the face of these strong guards against freeing the law, the most reasonable avenue for creating a freely-accessible copy is buying and scanning the printed copies, which is exactly what some citizens are starting to do.

Why this matters

This has effects in many places. Advocacy organizations pushing for changes can't reference laws by linking to them, so they have to copy & paste relevant sections and hope that people trust their versions. Of course, when laws go out of date, these copy and pasted guides stop working.

The goal of better educating the police about laws (like the rules of the road for bicyclists) is harder. Police can't have an offline copy of the law for quick access in the field, and the online version is near-useless on smartphones.

It's also locking the DC Council into using a contractor for this purpose. DC's contracts with WestLaw and LexisNexis aren't strong enough to force the contractors to provide them with a copyright-cleaned version, so the council itself doesn't have a compiled copy of the law that they can publish by themselves if they want to take this in-house.

What's Next

This is a hard problem to unwrap and fix, and there are multiple efforts afoot.

Waldo Jaquith is building The State Decoded, an open-source system for storing and displaying state codes. It's already deployed with Virginia's laws. Public is working on the long task of scanning and digitizing the print edition. And a group of residents are encouraging the council to write a better contract than the current one with LexisNexis, which doesn't provide for copyright-free copies.

Meanwhile, it'll be months or years until it's possible to download DC's laws onto your iPhone and clarify whether it is, indeed, legal to bike on a sidewalk (sometimes) or drink in public space (never).

Public Safety

Can we get more proportionality in criminal justice?

I was heartbroken to read that Aaron Swartz, a 26-year-old Internet freedom activist, author of RSS, and Reddit cofounder, killed himself on Friday. I'd met Aaron a few times; on April 6, 2009, he emailed me to ask about books he should read on city policy issues.

Photo by okfn on Flickr.

Aaron clearly suffered from depression, but his family, law professor Lawrence Lessig, and many others are also criticizing prosecutors in the Boston US Attorney's office who hounded Aaron with multiple felony charges after he downloaded large numbers of academic articles at MIT, but never distributed them.

Aaron, and many others, find a major injustice in the the way academic journals pay authors nothing for articles but then charge large amounts of money for online access to the journals. That doesn't justify lawbreaking, but his also wasn't a transgression that merits multiple felony counts and jail time.

In a post entitled "Prosecutor as bully," Lessig wrote:

If what the government alleged was true ... then what [Aaron] did was wrong. ... But all this shows is that if the government proved its case, some punishment was appropriate. So what was that appropriate punishment? ... Our government continued to push as if it had caught the 9/11 terrorists red-handed. ...

From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. ... I get wrong. But I also get proportionality. And if you don't get both, you don't deserve to have the power of the United States government behind you.

For remember, we live in a world where the architects of the financial crisis regularly dine at the White House—and where even those brought to "justice" never even have to admit any wrongdoing, let alone be labeled "felons."

Our local criminal justice system also has plenty of examples of proportionality failures.

Drivers who behave recklessly and kill pedestrians and cyclists usually face little punishment unless they are drunk or flee. When a driver was caught on tape assaulting a cyclist, authorities didn't press charges. After police worked hard to investigate a driver who was allegedly on his cell phone when he hit and killed a senior crossing the street, prosecutors brought charges, but a grand jury refused to indict.

Meanwhile, our punishments for some transgressions often go far beyond what's appropriate or what is necessary to stop crime, like suspending students for taking their prescription medication without proper paperwork or a 6-year-old for making a gun shape with a hand.

Even for violent crimes, which we absolutely must vehemently combat, prison terms often far exceed what's necessary or effective. In his most recent column, David Brooks wrote:

If you want to deter crime, it seems that you'd want to lengthen prison sentences so that criminals would face steeper costs for breaking the law. In fact, a mountain of research shows that increases in prison terms have done nothing to deter crime. Criminals, like the rest of us, aren't much influenced by things they might have to experience far in the future.
Instead, it's more effective to fight lawbreaking by adding actual enforcement, so that more perpetrators get caught and punished. In the lingo of the field, you want to increase certainty rather than severity.

Based on this logic, our local government just passed a bill to relieve punitive burdens on drivers who speed. It made sense not to charge punitively high fees on speeders, since the primary objective must be safety rather than revenue. (Unfortunately, Phil Mendelson, who never participated in the task force that pored over research and debated options, then rewrote or deleted most of the key provisions in the bill that would increase certainty, and added new sections that will reduce safety in other ways.)

Now we've applied the certainty-over-severity analysis, or at least the less-severity half, to an area of crime that has a politically powerful constituency—drivers—behind it. Will the council now do the same for other areas of our criminal justice?

Unlike speeding, injustices in the way we prosecute drug laws or the "school to prison pipeline" disproportionately affect poorer and minority communities that have less political clout. The families who suffer from over-incarceration are less likely to be the ones having lunch with a councilmember than the business leader who might complain about some speeding tickets.

Will Wells try to fix laws that over-punish some people to little end, and under-punish others who today don't face any consequences for serious transgressions? Will the rest of the council agree to such measures?

It's not possible to devise a perfectly fair criminal justice system. Some people will get away with serious malfeasance while others suffer excessively. What we can do, both nationally by recalibrating our response to journal article downloading versus financial fraud, or locally in our response to speeding versus shooting transgendered people, is push for more proportionality where possible. There's a lot of work to do.


Transit agencies may get reprieve from patent troll

Any transit agencies around the nation who haven't yet gotten sued by patent troll ArrivalStar might be in luck. The Electronic Frontier Foundation (EFF) has found prior art which may prove the patent invalid, and has asked the US Patent and Trademark Office to reexamine the patent.

TriMet real-time arrival sign. Photo by sfcityscape on Flickr.

The owner of the patent controls two offshore firms, ArrivalStar and Melvino Technologies, whose sole business is to file lawsuits against transit agencies, airlines, department stores, and anyone else who makes or uses a product that tracks vehicles in real time. Meanwhile, they don't actually make any products that track vehicles.

ArrivalStar and Melvino have sued multiple Northern Virginia governments and transit agencies, the Maryland Transit Administration, the MBTA, the Port Authority of NY and NJ, Chicago's Metra, Portland's TriMet, Seattle's King County, Albuquerque, Cleveland, DFW Airport, Macy's, Ford, Gymboree, United Airlines, and many more for a total of over 100 lawsuits.

Agencies have settled for tens of thousands of dollars of public money to avoid spending even more to fight the lawsuit and try to invalidate the patent.

It's unclear whether anyone can, or should be able to, patent such a broad concept as tracking vehicles with computers. It's not some kind of a unique idea that only came from years of painstaking research, which nobody else thought of or would have. However, that's not exactly the standard for patents under current law, and the patent office often ends up granting unreasonably broad patents.

You can't patent something if someone already invented it and published about it, and that's what EFF alleges. They found a US Department of Transportation technical report from 1992 that describes just the kind of vehicle tracking in the patent. News articles talk about the Nextbus company's product, which also does this, from 1996. Yet the patent office granted Patent #7,030,781 in 1999 2006, but with a "priority date," the date before which prior art is relevant, of 1999 or 1993.

Some patents play a valuable role in ensuring inventors get some compensation for their inventions, and rightly so. They are especially important in fields that require expensive R&D, such as pharmaceuticals. However, for software and business methods in particular, a great number of patents go to whoever first files for a fairly broad idea, like streaming audio on the Internet, multi-player games, looking up bar codes in a database, purchasing things from inside apps, or having users send messages to other users of a website.

Coupled with a 17-year patent term that is far longer than the lifecycle of products in technology, these kinds of patents have done a lot of damage to innovation, by making it very expensive for anyone to develop a new product from scratch. They cost transit agencies money and can prevent transit riders from having the best information.

EFF has been pushing to reform a broken patent system. You can lend your voice at Defend Innovation and become an EFF member (I have been one for many years now). It'll help transit riders and many, many more people who benefit from innovative technology.


Patent troll sues transit agencies who provide real-time info

Martin Kelly Jones doesn't make or sell a thing, but has made a living by suing transit agencies who use real-time tracking technologies that he says he owns. It's a practice known as "patent trolling."

Photo by Oran Viriyincy on Flickr.

Jones filed his first transit-related patent in 1993, securing rights to the idea of letting parents know when school buses were running late. More than 30 additional patents of similar ideas followed.

Jones doesn't actually develop or sell any technology relating to real-time vehicle tracking, but that hasn't stopped him (and his two offshore firms, ArrivalStar and Melvino Technologies) from punishing anyone who does. To date, he's filed more than 100 lawsuits against anyone who uses such technology—everyone from Ford to Abercrombie & Fitch to American Airlines to FedEx. He's now one of the top 25 filers of patent infringement suits, according to

Lately, Jones has focused his litigious impulse on transit agencies around the country.

According to a brief by the Georgetown Climate Center, "ArrivalStar has brought suit against at least ten transit entities, and at least eight more have received demand letters." GCC, which convenes the Transportation Climate Initiative, worries that the suits can create a chilling effect, discouraging agencies from employing vehicle tracking technologies. Real-time bus arrival information has been shown to increase ridership, taking cars off the road and reducing vehicle emissions.

Jones' strategy is not to sue transit agencies for all they're worth, but to offer them a relatively low-cost way to keep these cases out of court. In fact, not one of his lawsuits has gone all the way through trial. They always end up settling, usually for $50,000 to $75,000, though the demands can go as high as $200,000.

"That's $75,000 of taxpayer money that's going into ArrivalStar's pockets without the validity of the patent ever being challenged," said attorney Babak Siavoshy, who represents the Electronic Frontier Foundation. "If they make the settlement amount low enough, where the costs and benefits favor settling, then most municipalities are going to settle, and it costs them a lot of money, because the cost of litigation is a big stick."

Siavoshy and EFF want the US Patent and Trademark Office to review Jones' patents. EFF is looking for what's known as "prior art": examples of real-time vehicle tracking being discussed before Jones took out the patent, to show that he wasn't the first one with the idea. Advocates also think they can prove that the systems Jones patented were too "obvious" or "non-novel"—that they were logical extensions of existing technology. Abstract ideas, with no technology or product attached, are not patentable.

ArrivalStar attorney Anthony Dowell contends that the patents are defensible and that Jones has the right to seek money from the agencies. "Just because an entity is funded with taxpayer dollars doesn't give them the right to steal property," said Dowell in a recent interview with ArsTechnica. "My client now owns 34 patents that are being infringed, and what else is he to do?"

The transit agencies I called couldn't comment, since the case was pending. But the general counsel of the Monterey-Salinas Transit Corporation, David Laredo, said that they're not challenging the validity of the patents. Their strategy is to assert that the vendor who sold the technology to the transit agency (Trapeze, a spinoff of Siemens) does hold a license from ArrivalStar, and if they don't, that's the vendor's problem, not theirs.

To date, ArrivalStar has reached settlements with the city of Fairfax, Virginia; Boston's MBTA; New York City's MTA; Chicago's Metra; and the Maryland Transit Authority. Suits are pending against the Port Authority of New York and New Jersey's PATH; King County, Washington; the Monterey-Salinas Transit Corporation; the Greater Cleveland Regional Transit Authority; and Portland's TriMet.

In the past, transit agencies may not have talked to each other about these lawsuits because Jones reportedly insists on a nondisclosure agreement as part of the settlement. He only brings a few suits at a time, using a divide-and-conquer strategy, taking care not to demand so much from these public entities that they would pursue litigation.

The recent focus of Jones' lawsuits on transit agencies has inspired Georgetown Climate Center and the American Public Transit Association to get these entities to communicate more and to develop a more cohesive strategy. So far, though, Jones' strategy has been working.

But since Jones brought a suit against the U.S. Postal Service last November, the federal government is now affected. His suit charges the post office with violating his patents with its package tracking services.

Since USPS is a federal agency, the Department of Justice is now involved, defending the post office against ArrivalStar's claims by saying the patents are invalid and that no infringement occurred. Advocates and attorneys are trying to persuade the feds to broaden their interest in ArrivalStar from just USPS to all the transit agencies that have been affected.

After all, the transit agencies, by and large, bought the GPS tracking devices with federal dollars, in pursuit of federal transportation goals. Publicly available real-time transit information—on smartphone apps, transit agency websites, or on screens in bus stops and train stations—makes transit a more attractive option, with the potential to reduce congestion and pollution. SAFETEA-LU, the transportation authorization the country is still (amazingly) working under, specifically requires states to identify ways to deliver real-time transit information to the public.

Georgetown Climate Center Director Vicki Arroyo told Streetsblog that she's had some "early but hopeful discussions" with senior USDOT officials.

"Earlier, some of the more junior people within the federal government were not keen to take this on, saying they didn't have a dog in the fight. Now they do," she said, referring to the suit against the postal service. "We're hoping they won't just look at this as a one-off matter. There's a much higher public stake here."

A version of this article was originally posted at Streetsblog Capitol Hill.

Editor's note: The MBTA's response brief to ArrivalStar rebuts the company's actions with powerful rhetoric that's unusual for a legal filing:

This lawsuit offends any notion of justice. The mission of Defendant Massachusetts Bay Transportation Authority ("MBTA") is to transport its 1.1 million riders safely and on time every day. As a service to the riding public, the MBTA alterts riders via its website, text message or email whether one of its vehicles is running late or has otherwise encountered some difficulty or delay. Though the MBTA is a cash-strapped public entity, its notification service is free of charge to anyone who wishes to subscribe. The MBTA makes no money from this service. The service provides a benefit to the riding public, by whom it has been well received.

Plaintiffs ArrivalStar S.A. and Melvino Technologies Limited (collectively, "Plaintiffs" or "Arrivalstar"), two offshore companies, allege, in a conclusory and unspecified manner, that the technology underpinning the MBTA's alert system infringes on two patents that they claim to own. Plaintiffs do not allege they produce or manufacture anything. They do not allege they sell anything. The primary, if not sole, purpose of Arrivalstar is to exact tribute from any person that Arrivalstar asserts is using inventions claimed in patents that they purport to own, either in the form of royalties or a strike suit such as this one. The Court may take notice of the fifteen suits Plaintiffs, or a related entity, have brought in federal district courts involving the same two patents at issue in this dispute. ...

In any event, the practice of monetizing patents through serial litigation by "non-practicing entities" or "NPEs," as they are euphemistically known, is unseemly and inimical to the fundamental purpose of United States patent laws of encouraging innovation and its introduction into the economy. The business model of Plaintiffs is no less obvious than the patents themselves, and shakedowns such as this one should be outlawed.


Zimmerman and Linton debate Google

A few hours after debating the value of innovation regarding NextBus, Arlington's Chris Zimmerman and Maryland's Gordon Linton continued their debate over technology at the full Board meeting. In the interim, the Metro Board renewed John Catoe's contract with a small raise. I addressed the Board during the public comment period about Google Transit, presenting the arguments in this handout.

Zimmerman (left) and Linton (right). Image from WMATA.

This post summarizes the discussion; tomorrow, I'll present my take. The audio of the exchange begins at 42:15 in this stream.

I told the Board how we'd discovered that neither New York, Chicago, or any other transit agency whose contract we obtained is getting money from Google in exchange for providing transit data. Therefore, it's virtually impossible for Metro to do so. As a result, spending $500,000 on a contract to find out how much they can get is simply throwing $500,000 down the drain. Gordon Linton, the alternate director from Montgomery County and former FTA head, responded first to my comments.

I clearly understand your position, and I also underst the source of your information. But I will say to you very candidly that I have had discussions with some of the same agencies htat you suggested had no revenues, and part of it is that they never considered the opportunity for revenues. So it is not that revenues do not exist.

Yes, we at Metro are looking at intellectual property. Our riders and the jurisdictions and taxpayers have to pay for these services. It is our responsibility to look at every opportunity for revenues in every item that we do. Because another transit agency has chosen not to do that, including New York, Los Angeles and others, and I've talked to the marketing reps from those agencies, and they've never explored it, that does not suggest that we should not.

Our staff has been directed by the board to do exactly what they've done with intellectual property, because we need to make sure that we're receiving revenues for all the assets that Metro has, and we need to consider that on behalf of all our riders.

Chris Zimmerman first explored the issue of indemnification. In a nutshell, New York and Chicago have negotiated contracts where they don't indemnify Google for anything. Staff have claimed that's a sticking point, but since these other agencies have gotten past that, Zimmerman suggested that Metro try to get the same.

Sarah Wilson, the Metro staff member working on this issue, replied to Zimmerman's question about indemnification by bringing up an unrelated argument:

We did an anlysis of the ten major transit properties, and we are the only ones who solicit advertising on our own website. What that means is that to the extent that we are driving traffic to our website that is helpful towards revenues that we derive.
Zimmerman interrupted Wilson to ask her to focus on the question he asked, about indemnification. Wilson then told the Board that Metro hasn't tried to negotiate away the indemnification since we found out that other transit agencies have removed the clause.

Zimmerman continued:

A far as the revenue side goes I certainly agree that we should explore, and I think we have a duty to explore, any possibility for revenue. And I agree with Mr. Linton that transit agencies dont always do that and we should. And I support your efforts to find out the value of any intellectual property that we have including those provided by the internet.

On the other hand, I don't see any reaason for us not take advantage of opportunities right now, today, to provide more information to customers that doesn't cost us anything, as long as we protect the long term value. In other words, we don't have to say that, now and forever, we're going to do something for free. Mr. Linton, in an earlier meeting, cited our example of car sharing, and I think it is instructive. He correctly pointed out that we are now getting some rev back from that contract, as we should because someone is making money off it. And that was right. But we just started out by saying, let's just get car sharing started, and the people coming in weren't making a lot of money on it, and we didn't expect to make any money on it. And after a few years we were able to do that.

Right now it seems to me there's an opportunity to provide benfit to customers, both those who live here and those who come from around the country, to be able to sue our system more effectively in a way that it looks like doesn't cost anything. If there's a way to do that and, again, hold out the possibility in the future... This is a very dynamic environment. The Internet changes all the time. You dont want to bind yourself well into the future. But
why not do something now.

I've got a trip coming up to another city. I'm going to Boston for a conference, and I ... was able to have it tell me how to use transit in the city of Boston to get from the airport to the location of the conference. The kind of thing everybody here's probably done on the Web when you're driving somewhere. It seems to me that it's a very tangible benefit we could have and I don't see anything that I've heard told that says we can't do that without causing some kind of long-term damage. I don't see what the loss to us is, assuming we can clear up this indemnification issue, what significant cost there would be to us of allowing that to happen in Washington, DC and its surroundings just like right now it is in New York, Chicago, Boston, and most of the major cities in the country.

Next: Who's right? Both, and neither, but mostly Zimmerman is spot on.


Zimmerman and Linton on innovation

At Thursday's Metro Board meeting, issues around open access to data arose twice, once around NextBus and once around schedule data and Google Transit. Both times, Board member Chris Zimmerman of Arlington advocated for Metro to take an encouraging stance toward innovation, while alternate Board member Gordon Linton of Maryland suggested Metro should limit access to information until and unless they can work out legal contracts to protect potential future sources of revenue.

Zimmerman (left) and Linton (right). Image from WMATA.

This is a complex issue spanning two related but separate topics. First, should Metro do a deal with Google, a big company that might make some money from ads while riders use its service? Second, should Metro enable other, smaller developers to create applications, whether or not they make money? The issues are related and, more importantly, often get tangled up with each other. Today, I've transcribed the debates at the Metro board. In upcoming days, I'll boil down the key arguments and explain why Linton's point of view misses the forest for the trees.

First, Metro staff presented the NextBus summary we discussed last week. Zimmerman asked whether Metro can allow developers to build innovative tools using NextBus data. The exchange begins at 1:14:48 in this audio stream.

I'm told that there are bars in Portland, Oregon where they have digital displays, and you can be sitting there right up until the streetcar is coming so you can run and catch the streetcar. We heard sometime last year about something in Chicago, an application that can call your cell phone [when your bus is coming]. These were being done by outside third parties tapping into the information and making it more generally available. Can we do that here?
Staff replied that they weren't sure, but would look into the possibility. Zimmerman continued,
To the extent that we can leverage this to increase the communication out there, increase the accessibility of the system, that would increase awareness. All the people who aren't using the thing say "What's that?" and "That's cool!" and you could pick up customers that way.
Linton spoke up to point out that there might also be licensing issues. But should licensing issues prevent any progress?
While it's always good to be looking for how we can make any revenue we can to offset the cost of subsidies and fares, it would be a shame to get ourselves so tied up in what might not be a significant revenue stream that we miss the larger thing. Getting a customer on that pays a fare to fill a bus that's not full could be worth a lot more to us, potentially.

Many of of these kinds of applications aren't making a lot of money for anybody. One example that I heard of is some graduate student; basically it's a hobby. They do i for fun. Somebody sometimes money and a lot of them don't. Our fundamental biz is transportation, and to the extent that we can do that better and get more customers, that's where our emphasis ought to be.

Linton, a former FTA administrator and now private transportation consultant, didn't agree.
That is our fundamental business, but we don't have that business unless we have revenue to support it. My experience has always been that we tend to underestimate and overlook the revenue implications of this. When we were looking at the idea to have car rental services, I suggested that we explore it and what I heard was that this was a service that we provide to our users. Just by exploring it we found that there was revenue.

We always need to look and not assume that just because you provide a service that someobdy's not generating income. And since I am on the other side of this equation I know how people are out there generating income. Transit agencies I have supported for my entire career are always begging for money, but do not value their resources, and others do who are lining their pockets.

I would point out, though that your example is instructive. You're talking about car sharing. When we started that we just provided the space, and we didnt get any money back. More recently, we have been able to make arrangements that do provide us some money back, but when they first walked in here to do car sharing, there was no money to be made. Nobody was making anything. It was important to get it seeded and started to a point where someondey is making money and we can share in it.

If nobody is doing it then nobody is making any money on it. It's very important to protect our long-term interests. But again, if it doesn't get started, if it doesn't happen, then there's no value created. And I think we need to find a way to get these things started. In the long term if there is a flow of revenue that's significant, we should be tapping some of it. But this won't happen if we don't help stimulate it in the first place.

It's not a matter of not starting it, it's a matter of how you structure your deal. [It's fine if] the deal allows you to get the revenue that's generated, recognizing that for startups there's no revenue. I created public-private partnerships when I was at the FTA. They create a structure for innovation but at the same time recognize that at a point of innovation when we have a spinoff and rev starts to be generated, you should therefore start sharing in the revenues at that time.
Next: The debate over Google Transit, a few hours later.


New York MTA threatens blogger, asserts copyright over schedule

The New York Metropolitan Transit Authority's lawyers are going after a local blogger, and attempting to block an iPhone application showing Metro-North railroad schedules. The blog StationStops writes about Metro-North Commuter Railroad service north of New York City, and often criticizes its operations. Its creator, Chris Schoenfeld, also created an iPhone application to give Metro-North riders schedule information. Now the MTA is insisting he pay them to license the data, and at one point even accused the site of pretending to be an official MTA site.

StationStops' iPhone application.

Schoenfeld's iPhone application lists schedules for Metro-North trains. The MTA provides its schedules to Google Transit, but doesn't release the data publicly, as Boston's MBTA recently did and WMATA has done though more restrictively. Therefore, Schoenfeld entered the schedule data manually from the published schedules to create his application.

Earlier this month, MTA marketers and then lawyers contacted him to demand he sign a license agreement or take down his iPhone app. At one point, the lawyers also claimed that his site appeared to be an official MTA site. Perhaps realizing the enormous fallout that would come from headlines like "MTA tries to silence blogger critical of its operations," they quickly backed off that particular claim. However, they continued to demand a share of his revenue, retroactive payment for prior sales, and a $5,000 license fee on top.

Some of the MTA's arguments resemble similar ones from Metro. The MTA told the Stamford Advocate that without a license, the iPhone application might provide inaccurate information. General Manager John Catoe used a similar talking point in a lunchtime chat last year. Ironically, the MTA's proposed agreement refuses to provide reliable data updates. They don't want Schoenfeld's application out there because it might give incorrect information, but if he pays them, then incorrect information isn't a concern?

What's really going on is that MTA (and WMATA) officials view technology differently than many users and developers today. In television, one company controls the distribution (cable or broadcast). They pay content providers for content. Those providers pay companies that make shows, who pay actors. The mobile phone market works similarly. You pay a carrier for service. They negotiate deals with specific phone makers to put phones on their network.

This system works fine for what it is, but it's very limiting. If you are a brilliant TV writer with an idea that none of the networks pick up, you're mostly out of luck. If you're a phone manufacturer with a great new phone, you have to still convince at least one US carrier to sell your phone. You can't just sell the phone to consumers, as you can in Europe. Apple had enormous trouble getting a carrier partner for the iPhone, and had to agree to offer it exclusively on AT&T. Other carriers refused to sell the phone entirely. Any innovation requires negotiation with numerous gatekeepers.

The World Wide Web doesn't work this way. Greater Greater Washington needs no permission from anyone to exist. You don't need anyone's permission to read it. I couldn't make a Greater Greater Washington TV and get it on cable, though I could distribute it via YouTube. Whereas the TV world and the mobile phone world work through deals negotiated by various companies' teams of lawyers, the Web works through a culture of permission already granted either expressly or implied. Enough Flickr photographers have listed their pictures under Creative Commons that I can illustrate most posts without having to ask people ahead of time. Without that, I'd need to plan articles a day or more ahead. I can link to other sites without negotiating with them (an issue that, once upon a time, some companies wanted to restrict).

Metro still mainly operates in the deal world. They negotiated a contract with NextBus, and the service launched. Soon you will be able to make phone calls from Metro stations because WMATA worked out a deal with the carriers. Sometimes Metro pays (as with NextBus), sometimes the other company pays (as with the mobile network). If a new carrier wants to operate on the underground antenna system, they have to work out a deal with the existing carriers. Metro needed a trip planner, so they paid some company to make one and put it on Why would they need another? That's analogous to the Publisher of the Internet deciding that DC already had one neighborhood blog for Shaw, so there can't be more. Back when getting online meant going onto AOL or Prodigy, that's basically how it worked. Those companies saw the Internet as just TV with a mouse.

The MTA is blundering about and getting all this bad press because they look at the world in terms of deals, and figure that this thing going on pertaining to them ought to fit into that world. Unfortunately for them, data itself isn't copyrightable, and as various experts tell the Stamford Advocate, most likely the MTA has no legal basis to stop the application. Unfortunately for Schoenfeld, and us, that doesn't stop the legal department from throwing its weight around, asking Apple to take the app down (as, unfortunately for iPhone users, Apple has tried to make itself another gatekeeper).

The freer Web model has spurred enormously greater innovation than the deal model. It also required some companies to accept that others might earn money as part of their efforts. You can buy something on using the Firefox browser and not give Mozilla a cut, or your Internet service provider. Early on, the AOL-type online services expected to get that cut, and cable companies are still trying to find a way. You can sell a piece of Windows software and not pay Microsoft. We have far more choice of content, software, and devices on computers than we do in cable set-top boxes or mobile phones.

Public transit agencies should be embracing this model. They aren't competing with each other or with their riders. They're taxpayer- and rider-funded organizations designed to provide services to the public. They can get a lot more public benefit by encouraging innovation instead of constantly worrying how to capture their cut of anything anyone does involving transit. Some agencies, like San Francisco's BART, get this. Unfortunately, many don't, to the detriment of public transit and the public everywhere.


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 wrong—to "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.


The power of positive planning

At last month's CopyNight, Beth Noveck suggested that the copyright balance movement needs to move beyond a negative agenda (don't pass more copyright extensions, don't regulate technology, don't create new criminal penalties) and toward a positive agenda. She elaborated on this idea yesterday in her blog.

Beth suggests that this need stretches beyond digital issues. I believe that in all areas, the progressive movement needs to develop a positive, inspirational vision for the future which a generation of voters can rally around. President Bush does this. During his acceptance speech at the RNC, or his State of the Union earlier this year, he was actually quite inspiring-sounding. He laid out a vision for a world people could get excited about living in. Of course, it was all a lie, a smokescreen to promulgate policies beneficial to the oligarchs at the expense of everyone - but at least he articulated a hopeful vision. Kerry only said "we can do better." How?

Progressives of the Progressive Era could suggest that if only we let women vote, directly elected Senators, let children be children instead of factory slaves, and banned alcohol, the world would be a better place. Sometimes they were definitely right (women voting) and sometimes wrong (booze), but they had something to strive for, even when they were in the minority. Today it's the "conservatives" who have big ideas for (bad) change and the progressives who only say no. We need a positive vision once more. 2020 Democrats made a start at this by developing a Declaration of Principles. Think tanks are starting to sprout up that will hopefully fill in the details.

Here in the Big Apple, the progressives are likewise occupied with obstructionism. While somewhat inevitable since the Mayor controls many of the mechanisms for proposing new projects, the City Council could be a more active voice. I'd like to see a grand vision for the great NYC of 25 or 50 years from now, one that progressives can rally around even if we don't all agree on every detail.

The city contains armies of planners working for a myriad of nonprofits with many different plans addressing many different issues, some are much more accessible to the layperson than others. But as far as I can tell nobody has synthesized these into a broad vision or even catalogued them. By necessity born of limited resources and time, planners generally seem to operate within their narrow issue groups.

I'm going to try finding one interesting new plan each week, or more often as I can. These will be ideas for something we can do differently to make New York City even better, or to deal with the enormous demand for residential and commercial space that is pushing prices up higher and higher. I ask what New York City should look like 25 years from now, and I'll post what I find on the Web that makes a beginning at answering this question.

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