Now that the legal bru-ha-ha between StationStops and MTA has blown over, and MTA seems to be making significant gestures to opening up their data, I want to give a very special and overdue shout-out to some great people behind the scenes who supported StationStops.

First and foremost is the Brooklyn Law Incubator & Policy Clinic headed by Professor Jonathan Askins, as well as professors Jason Mazzone and Derek Bambauer.

Shortly after my conflict with MTA began, I got in touch with Professor Mazzone regarding copyfraud - a term he had coined which I felt accurately represented the early disputes between StationStops and MTA. Mazzone referred me to the IP clinic, whom invited me to Brooklyn to present it to them.

A group of the students led by Erik Dykema took interest in my case, and started fervently researching the legal issues involved, preparing a list of legal contingencies for StationStops.

Thankfully, my conflict with MTA was resolved successfully. However, if necessary, BLIP was prepared to represent me as my lawyer in NY State court (and to be honest, they were a little bummed they didn’t get the opportunity .

In addition, student Liam Barber took the initiative to also attend evening meetings of the New York Data Transit Summit in Manhattan to further research other developers seeking resolution with MTA over data.

The information I received from these bright-eyed future lawyers was outstanding, and allowed me to negotiate with MTA on a very tricky legal subject with confidence and accuracy.

Its information that, from an experienced IP lawyer, would have cost thousands of dollars, but they did it pro bono. More importantly to me, because of the age of the students, they have grown up in a digital world, use MTA transit and mobile applications, and understand the implications and desirable outcome of open data on a personal level.

But they weren’t alone. 4 additional private lawyers, all of them top IP lawyers I could never possibly afford, also reviewed and advised on the legal issues surrounding my case at no cost. I want to thank them for their help as well, but will not name them here as I did not have a formal client relationship with them.

Having actual practicing lawyers chime in was extremely valuable, as they not only know the legal positions in the case, they know the likelihood of what happens in the real world when such cases go to court.

Also, a thanks to Electronic Frontier Foundation Senior Staff Attorney Matt Zimmerman for reviewing my case, offering EFF assistance, and sending it up for an excellent blog post by EFF Activism & Technology Manager Tim Jones.

Ron Coleman ( Twitter: @RonColeman )is a prominent NYC Intellectual Property attorney at Goetz Fitzpatrick LLP and author of the blog ‘LIKELIHOOD OF CONFUSION®’. Ron did not support, represent, or advise me directly, but his expert criticism of MTA’s licensing practices were outstanding in helping me explain to people what was going on.

Overlawyered is also a great blog and Twitter citizen for coverage of cases like mine where things seem a bit, well, overlawyered. They have recognized my case in the past and I love reading their tweets of other cases that make me just smh.

I want to thank my own lawyer, Brian Rosenfeld of Stamford, for his extremely high level of personal integrity and responsiveness in my case. Brian always answered my calls, always answered my emails, made it clear the issues he wanted to defer to IP experts (and located them), and overall was very supportive and pro-active.

Finally, I want to thank the Mark Heavey at the Marketing Department at MTA for personally bringing this entire matter to a peaceful resolution.

The case is closed, the hatchet buried, and hopefully someday I will have a new relationship with MTA that will result in great new services for MTA passengers.

I post this list not just to thank these people, but to provide support and encouragement for developers and other individuals and small business who find themselves in legal conflicts whose traditional expense may seem out of reach. Stand up for yourself, pick up the phone, call lawyers and law schools, explain your situation to them and your resources, and get help. It is out there!

As Professor Mazzone explains, in the case of copyfraud especially, its is extremely common for small businesses to simply submit when a larger entity serves them with an erroneous cease and desist. I encourage others to not do this until they have been professionally advised by experts as to their exact legal position.

Originally appeared on: StationStops - Metro-North Train Schedules and NYC Commuting Blog See the original post here: StationStops Thanks Brooklyn Law IP Clinic, Others for Legal Support

“(MTA Spokesman Aaron) Donovan said that MTA welcomes development of “innovative applications” that make it easier for riders to access train information.”

Based on my experience with MTA, this is complete BS.

As Ron Coleman, IP lawyer and Goetz Fitzpatick and author of the IP blog LIKELIHOOD OF CONFUSION® has asserted, MTA is much more interested in ‘rent-seeking’ than ‘actually helping people get around’.

From my experience and discussions with other developers and MTA C&D recipients, I can attest 100% that this is the case, without reservation.

MTA Marketing is a licensing and litigation machine – engaging developers to create accurate and powerful mobile applications for passengers is absolutely NOT a priority for them.

Part of this is because the same people responsible for licensing a subway coffee mug are the same people working with developers on mobile apps – until my case, believe me, that department really did not understand the importance and requirements for success between the two.

This is MTA’s behavior, this is the policy MTA exercises daily – not the policy Aaron Donovan attempts to assert.

MTA, compared to almost every other transit agency in the US, is a developer’s worst nightmare.

I actively pursued a license agreement with MTA for 6 months – I was calling THEM, for the most part MTA marketing had stopped returning my calls and emails entirely.

My return to discussion with Mark was only achieved through MTA backchannels.

When I got the license and brought up terms which needed negotiation, I was flatly refused and immediately (falsely) told that my app and website were infringing on MTA intellectual property and needed to come down or face cease and desist, period.

There was no negotiation on their end on this – when I asked them for new disclaimer language or changes I needed to make to be in compliance, I was flatly refused – they insisted the ONLY negotiation was that I sign the license or take down my app and website, period.

To add insult to injury, the C&D to Apple insisted that *I* was the party unwilling to negotiate.

THAT IS NOT ‘WELCOMING INNOVATIVE APPLICATIONS’

That is ‘THE OPPOSITE’ of ‘WELCOMING INNOVATIVE APPLICATIONS’.

MTA never gave me a hard time about my app before I received the contract, we had a working good-faith relationship.

ALL of the litigation which has followed is a direct retaliation to my expressing objection to the affordability and schedule update policy of the license.

That was my reward for working with MTA.

Period.

It has cost myself and my family nearly $3000 in lost sales and legal fees in order to have professional attorneys attempt to break down the cease and desist sent to Apple and StationStops so that they can advise me as to the legal status of their claims.

I have had multiple IP attorneys, law professors and students review my C&D, and they are in agreement that in the very best case, its poorly authored and does not even specify what intellectual property I was infringing on.

Personally, I believe the C&D was made to be purposefully ambiguous as there was no legal basis.

Unfortunately, since IP law is such an expensive and complicated legal practice, it was impossible for me to represent myself without expending money on specifically skilled counsel.

This is EXACTLY what MTA legal counted on when they sent me the cease and desist – they know the cost of defending oneself against IP fraud, so they sent me the cease and desist expecting me to take my ball and go home, as countless other of their C&D recipients have done.

This is what Brooklyn Law Professor Jason Mazzone describes as copyfraud.

MTA never sued me, but they knew in order to protect myself from their C&D, I would need to undertake expensive legal counseling.

I will not and cannot give MTA ANY money for what they have done to me – it was false, misleading, and unprofessional behavior.

They owe StationStops a public apology for their past false IP claims and a written retraction of both cease and desists – I have asked for it several times in writing over the past couple of weeks – MTA has stopped responding to my emails altogether.

That would the ‘starting point’ of ‘welcoming innovative applications’.

Because the #1 thing developers are asking of MTA right now is EVIDENCE, not SPOKESMAN propaganda, that ‘MTA won’t take legal action against me if I seek working with them on innovative applications’.

Originally appeared on: StationStops - Metro-North Train Schedules and NYC Commuting Blog See the original post here: MTA: “We Welcome Innovative Applications” – Prove It!

But the one that made me spit coffee out my nose the other day is when MTA legal insisted that it was continuing to litigate against StationStops because to not do so would be “irresponsible to the public”.

Yes, that’s right, MTA has started arguing that their actions are in the public interest.

Why? Well, because MTA never has any money, and the taxpayers have to bail them out because they are so horrendously mismanaged – so when they go out and find a buck of their own out on the street somewhere – well, they are being ‘responsible’ to the public by finding some new money!

And of course, since MTA funds are so carefully accounted, well, EVERY PENNY that marketing brings in will be one less penny for taxpayers at the next bailout – right?

There are so many reasons that this is ridiculous that I cannot even think of where to start.

1. The public is opposed to MTA’s actions against StationStops

The biggest and most obvious reason this is completely disingenuous is that MTA has received absolutely nothing but NEGATIVE public support for their actions against StationStops.

I send the updates on news coverage to MTA legal & marketing regularly- they don’t respond, they don’t talk about it, they just pretend it doesn’t exist.

If they were acting in the public’s best interest, they would recognize that making false copyright infringement claims against small businesses for $170 (how much does their LAWYER get paid for 6 weeks of this?) is not on anyone’s ‘todo’ list for MTA.

This is especially the case since Councilwoman Brewer has requested they give the data away for free – Councilwoman Brewer is elected to represent ‘The Public’.

2. Small Business Makes Money, Jobs, and Passengers – MTA wastes money.

Right now, we are in a historic recession, with NYC in the depths of it. MTA’s contribution to ‘the public’ has been fare hikes, service retraction and and tax bailouts in the tens of millions of dollars!

Meanwhile, StationStops is a small business. Its not profitable (thanks to MTA thats pretty much guaranteed this year), but it takes in revenue, PAYS taxes (not spends them), and MARKETS MTA services and adds value to its ridership for FREE. Also – it creates a JOB – mine – maybe more if they would stand out of my way.

MTA does not need lawyers getting paid more money then they are bringing in and not only shutting down but DISCOURAGING many other small businesses – small business is what is going to get us out of this recession – not MTA licensing fees – those are going down the MTA cash toilet with every other dollar they can get their hands on.

3. Their actions resulting in FEWER mobile services for passengers and NO licensing fees for data schedules.

To date, neither MTA nor any developer I have spoke with been able to identify for me a mobile developer who has signed the data license with MTA.

MTA insists that ‘many’ have, but will not say who.

They gave me a name in the past, but that developer does not have a data license, they have a map license. Different license.

So, in terms of the data license, MTA is both litigating mobile developers out of their willingness to create their own apps, while doing nothing to actually *sell* data licenses.

Again, no mobile developer I know of is interested in signing a draconian contract with a partner now infamous for pursuing litigation with its potential licensees at their first request for term negotiation.

4. Their copyright claims are false and misleading

This one speaks for itself.

Footnote on MTA’s ‘semi-public’ status.

Dealing with MTA is fun, because they switch back and forth between being a ‘private’ company and a ‘public’ one depending on which best suits their argument at the time.

At one point, when I mentioned they were distributing ‘public’ information, they insisted they were a ‘private’ company.

Now they insist that their behavior with StationStops is on behalf of ‘the public’.

Convenient, eh?

Originally appeared on: StationStops - Metro-North Train Schedules and NYC Commuting Blog See the original post here: When MTA Makes Me Spit Coffee Out My Nose

Thanks to the Associated Press’s distribution of Martin Cassidy’s followup story in the Stamford Advocate, newspaper, radio, and TV coverage of the MTA vs StationStops legal battle has easily doubled since two week ago, and continues.

You really have to wonder about the MTA holding out for $170 while they get their bad press doubled in the same time frame – they obviously have no concerns whatsoever about the public response to their actions and collecting more and more negative press. That’s their choice, but a puzzling one.

I can’t help but wonder – who at MTA is sitting around making the political decision – “yeah, lets see how far we can stretch this out and how much bad press we can get before we put a bow on it”

New York Future Initiative
Web Developers Mobilize around MTA iPhone App Controversy

Second Avenue Sagas
MTA struggling in an age of open information

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.

CBS Radio via WTIC Interview
This story aired on multiple broadcasts starting Sept 7th.

NPR via Sept 7 WFUV Interview with reporter Ellen Burke
This story on multiple broadcasts starting Sept 7th

Connecticut Law Tribune
An Idea That Got Stopped In Its Tracks

The web version of my interview with Tribune reporter Doug Malan is behind a paywall. I have contacted the Tribune to ask if I could reproduce a portion of it for you.

Electronic Frontier Foundation
Who Controls Data About Public Transportation?

NYMTA’s extortionate actions censored a helpful and perfectly legal use of their data. The results have been bad for their reputation and bad for their passengers. Connecticut’s Stamford Advocate put it well: the MTA “should just leave (Schoenfeld) alone and let him make an honest buck by providing a useful service.”

LIKELIHOOD OF CONFUSION®
MTA’s way or the highway

Merits are irrelevant when there is no down side to litigating; all the more so when, to the contrary, someone’s job or department or seniority depends on finding things, no matter how idiotic, to justify his existence.

That looks a lot like what’s going on here. See, there’s nothing private parties can do in business and law that the government can’t do worse!

Associated Press via Greenwich Time/Advocate (Martin Cassidy’s Follow-up story)
MTA derails iPhone application

Note: As the Associated Press picked up Cassidy’s story, this was by far the biggest press exposure the story has gotten to date. At least 15 newspapers ran the story online that I can Google, and many more on TV and radio, most which I obviously cannot link to. -SS

“All the application developers will worry if the MTA will come after them next and sue them for royalties,” Schoenfeld said. “The question remains whether the MTA is seeking to engage developers into licensing contracts or trying to scare them out of developing MTA apps.”

Techcrunch
Gov 2.0: It’s All About The Platform

…the New York Metropolitan Transportation Authority issued a takedown order against the StationStops iPhone application. This is exactly the kind of bad policy that we hope to remedy by shedding light on best practices in government platform building.

-Guest blogger Tim O’Reilly

SFWeekly
NYC’s Metropolitian Transporation Authority Threatens Man Marketing S.F. Muni T-Shirts

in a recent phone interview, a spokesman for the agency, Aaron Donovan, seemed to backtrack: “We have no claim on Muni’s icons, we would need to look into the specifics of this case in greater detail to determine why the letter may have been sent,”

The New York Post
MTA Demands Its Piece Of The Piephone

Commenter georgesinc: “The train schedule is a public property and, of course, a public record. isn’t the info available on a web page for free? what’s wrong with selling an app that people have the option to buy as long as it has a disclaimer.”

The New York Times Online via ReadWriteWeb
NY Transportation Authority Cites Schedules as Copyrighted Material

“Judging by StationStop sales and the public outcry for Schoenfeld, customers want a better way to access their transportation information and they don’t care whether it’s city-run, state-run or citizen-driven.”

amNY
MTA looks for a cut from mobile phone applications

Nearly 40 transit agencies in the U.S.- including the systems in Washington, D.C., Philadelphia and Boston – have released the information for developers to freely use through a Google transit feed. Many of the agencies argue that it drives ridership and relieves them of the burden of creating on-line applications.

“Why isn’t that train data available? The public needs this”

-City Councilwoman Gale Brewer (D-Manhattan) Technology Aide Samuel Wong

Slashdot
New York MTA Asserts Copyright Over Schedule

(Note: Because of the popularity of Slashdot, traffic spiked enormously – make sure you read the over 345 COMMENTS!)

“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.’ I can’t believe that this the MTA’s actions are going to go over well with the public.”

CNet
Who Owns Transit Data?

“In local blogs and on transit sites, outrage over agencies and companies that claim ownership of the data is growing. The core argument against locking down such data is that it’s collected by or paid for by public, taxpayer-funded agencies and thus should be open to all citizens, and that schedule data by itself is not protectable content.”

The Stamford Advocate
Blogger, MTA clash over train schedules on iPhone (Lead story!)

“There is a very good chance that what he is copying is not copyrightable…There is also the argument that the MTA is a semipublic entity and that there should be no copyright on the schedule information they provide.”

-Quinnipiac University School of Law professor John Morgan

“He is just finding a way to aggregate data that is already listed on the MTA Web site and share it with commuters … I think he has developed a great idea. More information for commuters is better. If the MTA is going to offer a similar service, that would be good, too. But, in the meantime, if someone else has taken the initiative, they shouldn’t crack down on him.”

-Jim Cameron of The Connecticut Rail Commuter Council

Stamford Advocate (Editorial)
MTA should lose copyright claim

“The entrepreneur says it would be oppressive to cough up that ($5000) sum up front, although he appears willing to agree to the 10 percent. The authority should go for it. Or, better yet, it should just leave him alone and let him make an honest buck by providing a useful service.”

Techdirt
NY MTA The Latest Public Transportation Group To Declare It Owns Facts

“It’s difficult to see how the MTA has much of a legal leg to stand on here, but they don’t seem to have a problem being a bully against a developer who’s actually helping riders have a better experience.”

WTNH-TV Channel 8
MTA Blogger Defends iPhone App

“Perhaps instead of spending time and money on lawyers to harass you, they should be spending time and money on things to make their customers happy. Things that make customers happy include better service, less crowded trains, more reliable service, and ease of acquiring schedules.”

-Commenter Patrick

Gadget Nomad
New York MTA: Railroad Schedules are Copyrighted

“When a company fights against common sense, money’s probably involved—or at least the impression that money can be made.”

Mediapost
Who Owns The Train Schedule?

“One would think the Metropolitan Transportation Authority would want commuters to be able to access schedule information from a variety of sources. One would be wrong.”

Gadgetseria
Entitlement and greed in the digital age never cease to amaze me…

“Again, instead of actually adapting to new technologies themselves and bringing some revolutionary application or service to the public, they’re (MTA) choosing to keep innovative and quite useful services from coming forward. Sadly, we yet again see another abuse and misinterpretation of the digital cancer that is the DMCA.”

The Business Insider
MTA Says iPhone App Maker Can’t Use Train Schedules Without Permission

Dz Comments: “Glad this is finally being brought out. MTA is completely backwards with regards to mobile schedules. Hopefully this will end in favor of the riders”

Greater Greater Washington
New York MTA threatens blogger, asserts copyright over schedule

“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.”

The Village Voice
iPhone App-Maker Publishes Train Schedules; MTA Demands a Cut

“It’s 83 degrees in New York right now. We wonder if we owe Apple any money.”

Greenwich Roundup
Greenwich Roundup – Your Tax Dollars At Work: Failed Metro North Executives Must Be On Drugs

“Would Someone Please Tell Failed MTA Metro-North President Howard Permut That…The MTA Timetable Is Public Information That Is Funded By The Taxpayers Of CT And NY…Ridiculous copyright policies strike again…”

WTIC-1080
Blogger Vs. MTA: Are Train Schedules Intellectual Property?

GoV-log
Are Train and Bus Schedules Copyrighted?

“The story has been picked up by the New York Times and is sure to receive further attention as the question of whether such data is or can be copyrighted is debated. Perhaps the bigger issue here is that if a third-party is doing a public service, and doing it well, should a government agency even pursue a copyright infringement claim, even if it is warranted?”

Connecticut News Channel 12
StationStops vs MTA

Originally appeared on: StationStops - Metro-North Train Schedules and NYC Commuting Blog See the original post here: Press Coverage of MTA vs StationStops More Than Doubles

This week’s outstanding claim: That during those first few months that StationStops was on sale in the iTunes store, it contained the following disclaimer language:

“Not Affiliated with MTA”

According to MTA legal, not only was this insufficient language, but it expressly and implicitly inferrred an initial and ongoing relationship with MTA.

?!

Yeah, that interpretation is recognized about as far as the end of that MTA lawyer’s desk.

If that wasn’t insulting enough, when I asked the same lawyer to specifically submit to me the disclaimer language as he wanted it to appear, he stated – and this is a quote:

“There is no such language!”

…and offered me an ultimatum – take down my website or face cease and desist.

He didn’t offer to submit me language – he refused to submit me language on specific request – and then MTA sent a cease and desist to Apple insisting that I had refused to cooperate on disclaimer language!

In summary:

1. StationStops for iPhone has always, at the very minimum, contained the following disclaimer on its iTunes Application Page: “Not affiliated with MTA”. Anyone who is not an MTA lawyer will agree this was a logical and responsible disclaimer and in no way sought to imply anything else.

2. StationStops has always offered – and specifically requested- MTA to submit the language they wanted to appear – and was flatly denied.

3. MTA made false and misleading statements in its cease and desist to Apple insisting I was unwilling to work on disclaimer language.

4. When MTA finally expressed what the disclaimer language should contain (after the C&D) – StationStops changed it immediately, as it would have at any time.

4. MTA is seeking royalties on the ground that my disclaimer, at one time, only consisted of ‘Not Affiliated With MTA’.

If you’re wondering why I haven’t the lousy $170 and be done with it – well, you’re reading the answer – here and in the press.

I want the public to be completely aware of MTA’s litigation behavior against my app every step of the way, and do not want to give them any token for their actions.

In case you’re wondering what the new disclaimer language MTA finally agreed on:

“StationStops for iPhone is not affiliated with MTA or Metro-North Railroad, neither of which has supplied, reviewed, approved or endorsed StationStops for iPhone. StationStops for iPhone is a compilation of schedule information that has been prepared by Camel and Penguin Consulting, LLC, who is solely responsible for such information being accurate, complete and up to date. StationStops has no affiliation with MTA or Metro-North schedule information.

If you have anything on a website or application which even remotely refers to anything that MTA (or SF MUNI) might think it owns, I suggest you add this disclaimer immediately, before MTA notices and comes knocking on your door with a C&D and seeks back royalties.

Originally appeared on: StationStops - Metro-North Train Schedules and NYC Commuting Blog See the original post here: MTA Vs. StationStops: The Latest on Disclaimer Language

As an open-source developer since 1995, I personally owe a great deal to Tim’s company and its outstanding technical references.

One of my cherished tech mementos is an original printing of ‘Programming Perl’, signed by the authors.

Although Tim would never remember me, I’ve met him on at least two occasions and sat down for a meeting with him once. I’ve also been to his offices and met Perl author Larry Wall there, and watched Tom Christiansen moderate comp.lang.perl.misc over his shoulder there as well.

The place is legendary.

But only us open-source programmers can appreciate that kind of nostalgia, I guess.

Tim is also an active supporter of the free software and open source movements, and coined the term ‘Web 2.0′ (which was later misused by pretty much everyone).

In a guest post in Techcrunch, Tim sets his sights on Gov 2.0, and the hurdles involving the convergence of government and technology.

In the post, Tim, specifically mentions MTA’s case against StationStops for iPhone as the kind of approach which is holding progress back:

“Location is the key to the relevance of government to its citizenry, as well as to a host of non-governmental services. But there are already disputes about who owns the data. For example, the New York Metropolitan Transportation Authority issued a takedown order against the StationStops iPhone application. This is exactly the kind of bad policy that we hope to remedy by shedding light on best practices in government platform building.”

Read all about Tim’s ideas for Gov 2.0 in Techcrunch.

Originally appeared on: StationStops - Metro-North Train Schedules and NYC Commuting Blog See the original post here: Tim O’Reilly In Techcrunch: StationStops vs MTA ‘bad policy that we hope to remedy’!

MTA Licensing sent San Francisco T-Shirt designer Joe Moore a cease and desist, causing his T-Shirt to be removed from sale by Cafepress.com.

The reason: It infringed on MTA trademarks.

Problem is, the T-Shirt had absolutely nothing whatsoever to do with the NYC MTA or its trademarks – it was a shirt satirizing the San Francisco Muni System.

When SFWeekly picked up the story, they called MTA Spokesman Aaron Donovan for MTA’s side of the story:

“We have no claim on Muni’s icons, we would need to look into the specifics of this case in greater detail to determine why the letter may have been sent,” he said. “The images on Mr. Moore’s blog did not appear to show anything that would represent a trademark violation against the New York MTA.”

There is a dark side to the SFWeekly story though – SFMTA Spokeman expressed an interest in SFMTA pursuing its own licensing program.

My advice to the bay area: Look at MTA’s behavior, and do not let SFMTA do this under any circumstances.

Read more at SFWeekly and Moore’s blog, 40withegg.

Originally appeared on: StationStops - Metro-North Train Schedules and NYC Commuting Blog See the original post here: MTA Backpedals On Case Against San Francisco T-Shirt Designer