Public transit data through an intellectual property lens: lessons about open data.

• Author: Scassa, Teresa
• Position: IV. Asserting Intellectual Property Rights in Transit Data B. Transit Data Intellectual Property Skirmishes through Conclusion, with footnotes, p. 1789-1810 - Smart Law for Smart Cities: Regulation, Technology, and the Future of Cities

2. Transit Data Intellectual Property Skirmishes

Notwithstanding the rather weak copyright claims in relation to transit data, such claims have been regularly asserted. In this section, we consider some of these claims, the stated reasons for making them, and their role in the evolution towards open transit data.

1. Transit Maps

   The first skirmishes over transit data were in relation to non-interactive transit maps. Such maps are typically static. A map of a subway system for example, would only need updating if a new subway station were added (something that would be a relatively rare occurrence) or if a subway stop were renamed (also relatively rare). Bus route maps might change more frequently, but even so, the changes would be relatively few, and generally at easily predictable intervals (for example, seasonal changes).

   In 2005, at the very outset of a new era in mobile digital technology, New York City's Metropolitan Transportation Authority (MTA) sent a cease and desist letter (163) to William Bright, a developer who had copied the subway map from the MTA website, and adapted it for viewing on the iPod. (164) Bright's goal was to allow users to access subway information while on the go. (165) A similar cease and desist letter was sent to Bright by the Bay Area Rapid Transit authority (BART) in the same year, also in relation to a subway map designed for use on the iPod. (166)

   Both cease and desist letters asserted copyright in the maps. (167) While the MTA letter was relatively terse, the BART letter was more specific about its justification for asserting its rights. The letter stated: "BART is concerned that the unauthorized copying of content from the BART website will mislead consumers by providing inaccurate information with the implication that it is official BART information." (168) The asserted concern in this case was not about interference with any revenue streams; rather, it was about the accuracy of the posted information. This element of control--the perceived need to maintain control over information flowing to the public in order to ensure that only accurate information is disseminated--is a recurring theme in the context of government data more generally. (169)

   What can be drawn from these early skirmishes over transit data is that public transit information was carefully guarded by municipal transit authorities that saw their mandate as including oversight to ensure that they were the sole authorized source of information about transit operations. (170) What is also clear is that intellectual property rights--in these cases copyright (171)--were the means used to assert that control.

2. Static Transit Data

   The next generation of battles over transit data was related to static transit data--essentially, timetable information. Prior to the development of mobile technologies, transit timetable information was primarily made available to transit users through paper schedules, or through online versions of those paper schedules. (172) Some innovation was happening in the form of web-based trip planners that would allow users to go online to garner information about specific trips they wished to take. (173) Transit authorities developed phone and text message services that would allow users to contact the transit authority to get specific schedule information about, for example, a particular bus stop. (174) With the emergence of the iPhone and other smart mobile devices, two phenomena coincided. First, there was a much broader demand from the public for information that could be easily accessed from a smart phone. This was not just whole timetables that could be viewed through a tiny browser window. Rather, the public sought apps that would permit the user to select the desired information and to access it in a useful format. (175) The second phenomenon was the encouragement, initially by Apple, but later by other companies such as Google, of the development of apps by the community of users of mobile devices. (176) Users were encouraged not only by the availability of tools and information for app development, but also by a platform from which (conforming) apps could be distributed freely or for a price, as provided by Apple's App Store (and later the Android Market). (177)

   Because static transit data generally do not change with great frequency, and because changes come at predictable intervals, this type of data presents relatively few challenges for application developers. Early difficulties with the use of static transit data were chiefly the result of the assertion by some transit authorities of copyright in their timetables and in the underlying data. (178) Transit authorities resisted the sharing of their timetable data in different ways. One way was simply to deny access to these data in reusable formats. Unlike subway maps, timetable data in a large municipality would be voluminous, and subject to periodic change. If it were not made available in a digital reusable format, reducing the data to such a format would be a time consuming barrier for many developers. (179) In the early days of transit app development, some developers chose to obtain transit data either through access to information requests or by scraping the data from transit authority websites. (180) Ironically, as stated earlier, such practices were much more likely to introduce errors and inaccuracies--the very things the municipalities sought to avoid by refusing to release the data as open data. (181)

   Some municipalities that were initially unwilling to share their data with app developers under open licenses nonetheless chose to work with Google to have their data embedded in Google Maps. (182) As transit authorities began to adopt the GTFS, app developers also started to adopt and use this standard for their own app projects. (183) It should be noted that the choice of an open standard for data, as opposed to a closed or proprietary standard, is another piece of the open data and IP puzzle. When those municipalities who used the GTFS because of their relationship with Google later decided to make their data open to developers, the fact that they had organized their data according to a commonly used and non-proprietary standard was an important benefit. (184)

   As transit data became open, developers in cities across the United States were motivated to develop apps for static transit data. In some cases, these motivations were very personal--the developer sought to create something that would be of use to him or her personally, or to a friend or loved one who was a transit user. (185) In other cases, the goals were more mixed, ranging from commitment to developing useful apps, to personal skill development and even commercialization. (186) It should be noted that not all apps that use transit data will be exclusively public transit apps. For example, the open source OpenTripPlanner (187) integrates transit data with trip planning information for both pedestrians and cyclists. (188) Another app, Walk Score, (189) helps apartment hunters to make choices based on the availability of public transit. (190) In a sense, Google's use of transit data is a precursor to these types of apps. The incorporation of transit data into Google Maps was not so much about the creation of a transit data information tool as it was about creating a rich, multi-level information tool. In this way, transit data become interwoven with other information about particular urban areas. This shifts the focus from transit data as a proprietary data set under the control of transit authorities, with a primary relevance to public transit, to transit data as one of a number of interlinked data sets that are part of a broader narrative about life in a given municipality.

   In a modern, high volume, urban transit system, transit timetables are produced with the aid of computer software, although transit authorities must provide the necessary parameters for the timetables, including data regarding frequency, peak hours, and so on. (191) One could argue that the schedules are an expression of this tremendous intellectual effort (admittedly performed substantially with the aid of computers) and are thus copyright protected works. On this view, the schedules do not record observations regarding the behavior of buses (observable facts) but rather reflect a series of choices by the transit authority regarding how different bus departure times and frequencies should be organized so as to meet the needs of the traveling public. Yet, this argument would be difficult to sustain from a legal point of view. In the first place, the planning effort necessary to set a transit schedule is now largely automated, and new schedules are generated by tweaking certain parameters of existing schedules. (192) It is not clear that there is a sufficient exercise of authorship, nor is it clear that there is even an identifiable author for copyright protection to be available.

   There is also a distinction between the planning exercise and the printed timetables. Once drawn up, transit timetables reflect a series of transit facts: they tell us when certain buses or trains are scheduled to appear at particular stops. Thus, the schedules are, in essence, a collection of stop times; that is, a compilation of facts. This view separates the planning exercise necessary to operate a transit system (which does not require the incentive of copyright protection in order to occur) from the publication of the timetables, which provide information about those operations. Copyright protection for transit timetables is completely unrelated to their production--they would be generated regardless of whether copyright was available. There is simply no rationale to support copyright protection in these circumstances. (193)

   While it is still possible that claims to copyright in bus timetables as a whole would be recognized by courts, the protection for these compilations would necessarily be...