> “I'm an attorney by trade,” he said. “So this is something I know something about.”
The artist would clearly win his case in court, and sounds like he has the resources to do it, so I'm not worried. And after all, the "geometric" style subway map has prior art as the London Tube map starting in 1931 [1].
But I can't imagine what is going on at the MTA that they felt compelled to try to take this down in the first place. What on earth do they think they're trying to accomplish with it? Is there some kind of legal liability they think they're protecting themselves against? They're a governmental agency for crying out loud.
The purpose of a map in the abstract is not merely to answer questions about how to connect two points within a specific transportation system, the subway. Other possibilities include: connecting two locations above ground, understanding the connections and relationship among various places above ground, and even simply enumerating some of those places.
New York City's map shows a variety of out-of-system features which the designer's map doesn't bother with: railroads, avenues, major cross streets, major bus corridors (the original identifies airport link stops but not routes), local commuter rail corridors (LIRR, Metro North), regional rail corridors (Amtrak), ferries, road bridges, tunnels, the Roosevelt Island Aerial Tram, and many more parks.
The MTA map this more effectively answers more-general questions about New York. It can tell you to walk through the park between the Natural History Museum and the Metropolitan Museum of Art. This does come at the cost of interfering with several of the more-specific questions you identified.
The question you almost always want to answer about the relationship of the subway to the surroundings is "where is the nearest station entrance" which the system map cannot and should not answer. Any other question about that spatial relationship is essentially trivia, as far as a transit system map is concerned.
And don't try to use the MTA map as a guide to New York City, it is woefully geographically inaccurate. But it still looks like it might be right, so it is in fact quite misleading.
The responsibility of a transit system map is to tell you about the transit system. It should do that above all else.
> The question you almost always want to answer about the relationship of the subway to the surroundings is "where is the nearest station entrance" which the system map cannot and should not answer. Any other question about that spatial relationship is essentially trivia, as far as a transit system map is concerned.
Do you actually live and work in New York? I'll assume not, and your attitude proceeds from ignorance of the situation.
Suppose you work at 1 Pierrepont Plaza (former HQ of Hillary Clinton's campaign, bit of trivia there) and you want to go to Nakamura Ramen on the Lower East Side. You have a subway station right outside the door with the 2345R train, but you'd be a fool to take any of those instead of walking the extra five minutes to Jay St Metrotech for the F.
You are at Broadway - Lafayette St, and you wish to head to the Flatiron Building. The nearest subway to that is the R train. You can take the 6 and transfer at Union Square... but really, you should just walk from the 6 train at 28 St.
You are staying in Fort Greene. The nearest stop is Fulton St (G). The next nearest stop is Lafayette (C). Even if you are headed to Columbus Circle (ABCD1), you might find yourself better served by by walking to DeKalb to catch the B or the Q, which are acceptably close, have more frequent service, and bypass lower Manhattan. (If you are going to the Metropolitan Museum of Art, you will instead walk to Nevins.)
You work at Union Square and live in Williamsburg. A signal problem -- residual damage from Hurricane Sandy when the tunnel was flooded -- prevents the L train from operating. What are your options for getting home today?
Your proposed universal norm actually makes a lot of sense ... for hybrid commuter rail / metro systems, such as the DC Metro, or BART, where questions like these are only minor and occasional. It is far more ambiguous for NYC.
I do live in New York, thank you very much. My only attitude is that the MTA should never have killed Exit Strategy, that was the one really productive tool for straphangers.
Why do the situations you've proposed have any benefit from the MTA's map? Trying to determine which stations are near your origin or destination based on a system map is a fool's errand, particularly for as large a network as ours. If you're estimating walking times based on distance on the MTA's map, you're going to be very unpleasantly surprised.
The part of those questions that a system map can be useful for is which lines are continuous, which as I mentioned above, is best done when you can see it clearly rather than needing to read it.
The responsibility of the map has many different states based on the situation (long-term resident, tourist, disabled business visitor, non-English speaker, etc.)
I'm not convinced that Berman's map shows weeknight and weekend service massively better than the current one, which includes that info with the key. I find the symbols on Berman's map a bit confusing, and I suspect I would have to reference the key, negating their benefit.
On the other hand, citymapper, google maps, etc. make showing the "outside world" on a subway map less important than in the past, so perhaps it's time to reevaluate.
I think the current map really shines in lower manhattan, where the stops closest to the staring/ending location aren't always the best ones to get on.
I mean, they haven't taken it to court. They probably have a brand management team (understandably, because that impacts use of the subway) and some overzealous employee took an hour to file a complaint with Etsy.
Overzealous is an understatement. My work isn't even remotely related to IP or the MTA and even I've heard of this MTA attorney before. This is the same guy who filed to trademark "if you see something, say something".[1] A safety slogan.
Every few years one of his ridiculous filings or C&D letters seem to pop up on a blog or in the news.
How is that valid? I'm pretty sure it was the CTA's catchphrase well before that was filed...
Edit: Wikipedia says the CTA started using it in response to the 9/11 attacks, but the reference goes to a generic security page (probably changed since it was added). Did find a dated reference from 2004 though, over a year before that trademark was filed: https://www.nwitimes.com/news/local/cta-metra-beef-up-securi...
Let me start with - I agree with you. It is infuriating - to normal people like us.
But when faced with circumstances such as this - where one is inclined to say "why don't they spend that money on X instead?" - I find it useful to reflect on how organisations, and especially government organisations, work. Feel free to ignore this if you already understand and are just "venting" (quite rightfully I'd add), but what follows would be my "explain like I'm five" for why this sort of thing not only happens, but is almost guaranteed to happen.
See, the thing is, they aren't "spending money on this" in the sense that you or I would, say, spend money on lunch - ie. we have a pot of money, and we choose to take $10 out and buy lunch with it, leaving $10 less to spend on everything else.
The reality is that they have multiple pots of money, and each pot of money is only allowed to be spent on some category of expenditure. It'd be like if we had a bank account each for food, rent, transportation, clothing, utilities, etc, and you were only allowed to spend from each separate account accordingly. Now, when you got paid you put a proportion of your salary into each account - in proportions that you get to set annually. You can't move money between accounts - at best at the end of the year you can take everything that's left over and re-allocate it as a lump sum according to the rules.
Now let's stretch the analogy further - instead of you managing everything yourself, imagine if you were merely one person managing one account, and other people (say, the rest of your family) individually managed each account. Imagine the annual negotiation for doing the apportionment of the monthly income.
Now imagine that you get a personal "allowance" for managing that account, and the size of the allowance is related to the proportion of the total budget that the account encompasses - only fair, given that more money equals more responsibility, right? How do you think that would change the tone of the annual budgeting process?
What we have here in the above tortured analogy is probably a reasonable best case example of budget and monetary management in a big organisation. You can easily make it worse - say, money left over at the end of the year? Your "automatic" starting point for budgetary negotiation next year drops by that amount, for example.
Anyway, back to the point. They aren't "spending the money" as such. It's not like someone had the budget of the entire MTA sitting there and asked themselves "What should I do with this money - should I pay a lawyer to send a copyright letter to this artist, or should I pay someone to clean up some graffiti?"
What they have is a legal department staffed with X people, many of whom are mandatory to have available on staff for when something comes up. But they also have to do something with their days. They are paid regardless of what they do - be it write threatening letters, go to court, negotiate contracts, or browse hacker news. But their boss will definitely notice if they aren't doing something. And the boss' boss will notice too, eventually.
So maybe this kind of nonsense is a warning signal that the legal department is over-staffed and some over-zealous member got bored and decided that this was a better use of their time than writing long-winded HN posts. And maybe this will get the attention of the higher-ups, who might ask the right questions, such as "Are we over-staffed in Legal?" And maybe the legal department budget gets cut by one FTE and that allocation can be spread elsewhere. So maybe the year after next when the maintenance division asks for another graffiti crew, they'll get it.
I agree the artist wins the case, but on fair use not prior art. The following quotes in an email essentially kill any possible MTA case:
>“Yes, there are minor differences between your map and the MTA map,” Freundlich wrote in his email. “But given your access to the MTA map on the MTA website, and the substantial similarities of your map to the MTA map, the only rational conclusion is that your map is based on the MTA Vignelli map.”
MTA acknowledges the artist map is based on the MTA map and acknowledges differences no matter how minor.
The artist's map is based on the facts of MTA subway service and station locations, and common principles of data visualization.
If the artist gleaned facts from the official MTA map, and re-represented them on his own map, that does not make his a derivative work, even if the facts came solely from the map. The facts also could have come from riding every line and noting the station names and locations.
It's like copying a phone book. You can take numbers from AT&T's customer directory and put them in your own phone book, because that's all facts. There's no creative representation there. If the phone book represented the numbers in hand-drawn calligraphy, that visual representation would be protected, but not the factual content; you could still copy the names and numbers and re-render them in your own typeface.
Fair use doesn't even come into it. Naked facts are non-copyrightable. They have no protections whatsoever. Facts are public domain.
Are “trap” entries a thing with phone books like “trap streets” are with maps? That’s how they get people who cross the line of fact: https://en.wikipedia.org/wiki/Trap_street
Yep! In fact, the U.S. Supreme Court decided a landmark copyright case that involved them, although tangentially. In Feist, the Court held that entries in a phone book were not, by themselves, copyrightable. The Court acknowledged that "[f]our of [the listings] were fictitious listings that Rural had inserted into its directory to detect copying," but didn't discuss the importance of those beyond that statement.
Representing information as factual ought to result in it being treated as fact for copyright purposes, even if it's actually fictitious. In addition to opening the publisher up to liability for fraud.
I disagree. Two maps containing the same facts can present them very differently and there is plenty of scope for creative expression. So yes, the facts themselves do not fall under copyright but any non-trivial presentation arguably does.
In this case I think the MTA is still wrong though, just not for this reason.
If you take a factual data set and apply the visualization rules for "pie chart", the result will present similarly to the result of someone else applying the visualization rules for "pie chart" to the same data.
The visualization rules for "transit map" are more open to interpretation than for "pie chart", but if you look at the maps for London, Paris, Shanghai, Washington DC, Chicago, etc., they are almost self-evident:
1. Represent major stations as white circles with black outlines.
2. Represent service lines with easily distinguishable colors.
3. Constrain lines to angles divisible by 45 degrees (Paris divisible by 30 degrees).
4. Represent non-standard service with a dashed, dotted, or broken line.
5. Stations that are connected by pedestrian access are connected on the map. Minor stations, without service interchanges, may be represented by a smaller white dot or a tick mark.
Apply the rules to the facts, and the map appears. Some human tweaking may be necessary for clarity, and that is the only opportunity for copyrightable creativity to creep in.
MTA would need to assert a particular map feature that cannot be derived from applying transit map rules to the MTA transit facts. They did not.
Yes, but a map primarily consists of facts. You can use a map for reference in creating your own map without violating copyright. Your expression of those fact (the map design) just has to be reasonably different.
My comment is definitely an oversimplification that takes into account the rest of the context of the article which outlines all the differences which makes the author's work transformative enough to count. You're right that derivative works aren't a straight up protected use as my comment stated. However, "Not at all" is wrong, because derivative works are protected within the doctrine of Fair Use provided the work satisfies enough of the four-rule doctrine to qualify [1]. Transformative works are a subset of derivative works which are protected [2].
Just to clarify my grandparent comment here, I was thinking "transformative work" when I said it was protected by Fair Use, not "derivative work" as I stated. So I was wrong!
To clarify my sibling response here, I'm acknowledging that statement was wrong. However, to say that _derivative_ works are "not at all" protected by Fair Use isn't entirely accurate either, as they absolutely can be depending on the the judgement and application of the four-point doctrine of Fair Use. The parent comment here cites part of the copyright law, but Fair Use, which I cited, is a core component of the same copyright law that limits the application of the section they cited.
> Lester Freundlich, an attorney for the MTA, told Berman in an email Wednesday that his subway map was “clearly a derivative work of MTA’s current version of the Vignelli subway map.”
The MTA's attorney literally calls his map a "derivative work" which is something that's protected by Fair Use. When I read that in the article, I immediately thought that the artist's response should have been, "Thanks for clarifying that it's clearly a derivative work; so you'll drop the claim now?"
EDIT: For anyone reading this without additional context, I should clarify, derivative works are protected as long as they're transformative, which this seems pretty clearly enough so to count. So, it's less a point that being a derivative work itself means it's protected, than the point that being a derivative work doesn't mean it's not protected like the MTA's attorney seemed to imply.
Depends on how derivative and how transformative and, since Fair Use is a affirmative defense for which merit is decided subjectively, doesn't really matter until you're in court. Fair Use isn't protected, per se, more that it's an exception to copyright being protected if you can convince the judge.
That said, I wouldn't even call what I was looking at derivative. I can barely match the transit lines up for most of it, and the styling is completely different. It goes beyond transformative to just being a unique artistic rendering of the same base system. That's the phone book scenario the article raises to a T.
I agree with almost everything you said. Fair Use is definitely protected though, as it's a core component of the US copyright law that helped shape the rest of the law, not an exception or amendment that was added later. Copyright basically couldn't exist as we know it without Fair Use. However, it is definitely subjective and always evaluated on a case-by-case basis, though there are often precedents set which help you understand the likely judgements of Fair Use before you're in court.
I was definitely being imprecise with my wording though, as I was thinking about a _transformative_ work when I read their attorney say "derivative" work, where a transformative work is a type of derivative work that is protected by [subjective] Fair Use.
I also agree with you though that I wouldn't even necessarily consider this a transformative work of the other map, as that assumes he started with the other map. But just starting with the same facts, which aren't copyrightable, and following standard cartographic conventions while exercising the author's own artistic expression into the final rendition would just be a separate work entirely.
Sounds like we're really in full agreement, some semantics aside, and I think probably more people align with your semantics than mine. Thanks for the clarifications!
Uh, No. Derivative works must be transformative in order to qualify for their own copyright. But simply being transformative doesn't give the owner of the new work rights to do anything with it.
Ex: I write and produce a new SW film, and attempt to sell it without a license from Disney. I'm going to get sued into oblivion, because their copyright still applies, in terms of setting up the setting and characters.
Fair use can apply with derivative works (ex: I make a parody version of Star Wars, such as "Troops"), in which case you may succeed in being able to do stuff with your new SW parody, but you're likely to have to pay a bunch of lawyers a lot of money first if they don't like it. But being derivative doesn't guarantee it's Fair Use.
> The artist would clearly win his case in court ... so I'm not worried.
Laws have chilling effects though, so the fact that one defendant who happens to be well-resourced and legally savvy is able to fight this battle does not mean that everything is OK.
This was something that was brought up in some sort of efficiency review that was recently done. More concerning than New York City Transit having too many lawyers is that all the sub-agencies duplicate these departments... so there is a team sitting around at the LIRR, MNR, etc. doing similar things for their sub-agency. It is not an efficient organization.
Yes and no. The idea is that the MTA is claiming that it must be derived from their map, since its style is so similar; by showing there were similar maps made before, the argument becomes less credible.
> But I can't imagine what is going on at the MTA that they felt compelled to try to take this down in the first place. What on earth do they think they're trying to accomplish with it?
Officially licensed MTA merchandise bearing iconic NYC transportation graphics for tourists and transplants.
They are a public benefit corporation, and their governance is through a 21-member board. Board members are nominated by the Governor, with four recommended by New York City's mayor and one each by the county executives of Nassau, Suffolk, Westchester, Dutchess, Orange, Rockland, and Putnam counties (the members representing the latter four cast one collective vote). There are also non voting members representing unions and commuter groups.
For most purposes, they are a government agency, except for, and most especially, borrowing money. They have no taxing authority, and debt obligations of the corporation are NOT debt obligations of the state, and thus do not count against statutory limits on state borrowing, nor do they affect the bond rating of the states general obligation borrowing.
Most purposes: They are governed by a board appointed by the governor. While not employees of the state, by law their employees are regulated under the Civil Service Law.
Other purpose: Their debt is not an obligation of NYS.
But I can't imagine what is going on at the MTA that they felt compelled to try to take this down in the first place. What on earth do they think they're trying to accomplish with it? Is there some kind of legal liability they think they're protecting themselves against? They're a governmental agency for crying out loud.
My guess is it's one person in a legal department operating somewhat independently trying to make a big splash with some higher-ups. That's the only way it would make sense to me.
I disagree with MTA’s actions here but can imagine some reasons someone would feel the need to act on this. If a third-party representation of the system becomes a dominant way people refer to it then it could impact MTA’s ability to make changes like adding/cutting service to a particular station or building new stations. It’s fine now when the transit system irl and the defendant’s map are in sync, but the problem is keeping it that way.
Why shouldn't they? For the sake of argument, assume that their claim is valid (and it's not obvious to me it isn't). Why shouldn't a government agency be a responsible steward of all of its assets including its intellectual property?
I hav a LOT of problems with the MTA, but this isn't one of them.
>Why shouldn't a government agency be a responsible steward of all of its assets including its intellectual property?
I'll bite. Because it clearly does not benefit the taxpayers that fund the agency.
The taxpayers paid the MTA to make a map. Assume someone creates a derivative work that makes more sense (mind you, this is clearly not what happened -- if it is not obvious to you, you have not really read the article).
There is absolutely no benefit to the taxpayers to have the "derivative" map removed. The availability of the "derivative" map does not affect the availability of the official map, which is given away for free (not for profit).
In other words, if I pay you to develop software, and someone else writes a better manual for it, you'd be an idiot to take that down, and I will not be happy.
I'm not sure I understand your statements, at once you've said it's obvious to you their claim isn't valid but then you say this isn't a problem for you?
Merely looking for clarification, does playing Lawyer's advocate really work if you've already acknowledged the claim has no merit?
In terms of MTA motivation, aren't they just trying to protect it as an asset to limit its usage and thereby increase its potential value so that they can best monetize it? In this day and age where some spend their days trying to dissemble and neuter government traditional means of raising revenue, I don't necessarily find the approach problematic (putting aside the particulars of this specific case).
"That article also claimed the MTA received $500,000 a year in licensing revenue, a whopping .003 percent of the agency’s 2013 revenue."
Perhaps this isn't from the map, but either way, the logic of my suggestion applies equally to protecting the asset for future monetization as much as current monetization.
Most likely they think that if they don't sue, they'll lose their intellectual property interest. This would be true if they were suing over a trademark, where undefendended infringement creates a defense of abandonment.
>“But given your access to the MTA map on the MTA website, and the substantial similarities of your map to the MTA map, the only rational conclusion is that your map is based on the MTA Vignelli map.”
>But there is a potentially critical flaw in that logic. The MTA created The Weekender in 2011, two years after Berman created his map, which he uploaded to Wikipedia in 2009.
There needs to be consequences for such blatant fraud and abuse of the DMCA, ridiculous claims like this have gotten so common.
To be clear, it's not cities claiming copyright: it's private standards organizations, etc. that have written up a document (that can be covered by copyright law), and then it gets included or referenced in a city's law (that shouldn't be). They're just ignoring that transition.
I don't think the city should be able to automatically nullify someone's copyright claim by referencing it in law, and I don't think they should release laws that require citizens to pay fees (or anything else unreasonable) to read. It should be on the city to figure out a deal before it's the law.
That said, I think it's counter-productive for a standards organization to not make standards public domain in the first place if they're so widely applicable as to become a law, but maybe there's an angle here I'm missing.
I'll take the countervailing opinion here: regardless what the usual expectations of the standards organization might be, the situation changes as soon as it's included as legal requirements.
At soon as its inclusion in law is effective, their ability to collect fees or in any way restrict access is void. The referenced version, from that point forward, needs to be publicly accessible at no charge for as long as it is legally binding.
If they don't want to relinquish financial control, don't make it part of the public record or legally binding. QED.
I would agree, but only if the copyright holder is an active participant in making their standards legally binding, otherwise some city council somewhere is just unilaterally eliminating their copyright, which they have no right to do IMO. I mean if the standards bodies are pushing for their standards to become laws because that's an amazing business model, then I agree they should be waiving license fees as part of that push, but the buck stops with the government on that IMO. It shouldn't just be assumed or permitted. Don't have time to go dig myself right now to see if that's what's happening.
The end result is the same either way: The law, including all required references, must be available to the public in a free, non-discriminatory, and modern form (i.e. on the Internet, not a single paper copy accessible only in the basement of the state capitol building behind a door marked "beware of leopard") before it can be enforced. That means the state must find a way to make the law available to the public before it takes effect, and standards organizations likewise must agree to allow public access before their standards can be incorporated into the law. The federal government can, of course, revoke the copyright on a standard to achieve that result if permission is not forthcoming—despite the name it's merely an artificial privilege, not a natural right, and as such ought to be revoked the moment it fails to serve its intended purpose of benefiting the public.
I wasn't trying to interpret existing law, I was expressing my opinion on how the process _should_ work.
No one should be denied access to legal documentation that they could be held liable for compliance/non-compliance.
I'd argue even further and say that if any portion of the law or any supporting documentation is not fully accessible at any time, there should be no liability for non-compliance.
While I understand your approach, taking itvto the extreme it sounds to the lawmaker a little bit like: I didn't wear a helmet, you have any whatbthese things cost? I'm not going to get my car checked, unless you pay for it (it's my understanding frequent check-ups are not in fact mandatory in the US anyway). I didn't pay for this car, why would I?
I'm joking of course. What was the problem, MTA maps? Yeah, those are publicly accessable.
> The MTA is a “public benefit corporation“ owned by the State of New York.
I've explained in a comment below what a public benefit corporation is. Court rulings have confirmed their status as private corporations, even though the governor has the authority to appoint the board of directors.
> Which are not part of the federal government and so able to make copyright claims.
If you'd like to be deliberately obtuse, go for it, but I think it's clear the original comment was in reference to the fact that state and local governments can own copyright (they can, but that's irrelevant here, because the MTA is not a branch of the state government).
I think that point is that everything is covered by copyright, by default. This is true for all entities - corporations, individuals or government. It's automatic.
The works of the federal government are a well known exception. And while I'm sure there are some state/county/city governments that also place their works in the public domain that's not the default.
It's a pretty fair generalization to say that if something wasn't produced by the federal government that it is most likely covered by copyright.
MTA is a public benefit corporation which is a separate things and has different rules. This is why state works and MTA workers have different pensions etc. MTA police officers being the exception that proves the rule. https://codes.findlaw.com/ny/retirement-and-social-security-...
Surprised none of the other comments have pointed out that this is not true. The MTA is a public benefit corporation, which is a concept particular to New York State.
The simplest way to describe a NY public benefit corporation is that it's a private corporation, but the board of directors for the corporation is appointed by the governor.
Court rulings have confirmed that employees of PBCs in NY are not state employees; they are employees of the corporation.
A bond issued by the MTA is considered a revenue bond. The only source of income to pay the bond holders have is the revenues of the MTA. A bond issued by New York State is considered a general obligation of the state, with the expectation that New York State will use its tax power to pay the bond holders.
Can I patronize another MTA -- or start one - if I don't like the policies of this one?
No?
Then they're either state employees, or private actors wearing the colors of state authority. Which one of those is true is not interesting or relevant.
If it behaves the way the MTA is behaving, what difference does it make? That's the point that people taking your side of this question keep ignoring.
As we've seen with PG&E's behavior on the other side of the country, these entities are treated like official state agencies whenever they find it convenient to be treated that way, and like private businesses when that's more convenient.
It is not in the riders' interest -- or the taxpayer's -- for anyone to be allowed to dictate who can publish maps of a publicly-funded transit system. Whether the MTA is called a "public-private partnership," a "utility," a "transit authority," a "public benefit corporation," or simply a "government agency" is, again, not the least bit relevant.
In fairness, I think the claim (still meritless) would be that he adapted the original Vignelli map, not the version of it that the MTA started using in 2011.
There would be consequences if he sued, but most likely the complaint will just be reversed and everybody moves on.
Based on the article, though, the MTA might have a good faith defense. If they believed it was based on their map, and retract it after being made aware that it was not, they could win on a good faith defense.
DMCA might be the easiest to abuse law in history. It’s an embarrassment. I can’t count the number of times I’ve seen stories like this.
I had a subreddit with 25k people that got shut down due to a single angry user barraging fake DMCA requests on every post. It got shut down for “repeat copyright infringement” even though he owned none of the content. We tried creating a new one and he did the same and it got shut down even faster since it was a small sub. Reddit admins didn’t give a shit despite our mods efforts.
Reddit apparently isn’t in the business of deciding whether or not a claim is legitimate. Same with Etsy, which is the whole problem. It’s impossible to scale for these sites.
The DMCA was designed in an era where the web was more of an actual distributed web, where a "subreddit" was once known as an individual "forum" that had its own server run by the actual forum admin. In an age where web communication is centralized, the DMCA totally sucks.
In reddit's defense, they don't have much choice. They get far too many requests to authenticate and verify them. And the law says that if they do not act quickly on each request, they would lose their protection as a platform.
So their only choice is to remove each piece of content and then let you challenge the removal.
The real problem is the law itself, which provides no consequences for false claims. If congress would just add a false claims consequence, it would solve a lot of issues with the DMCA.
>(f)Misrepresentations.—Any person who knowingly materially misrepresents under this section—
(1)that material or activity is infringing, or
(2)that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
It's not a matter of scale. Nowhere in the law does it say that the site gets to make that decision. As long as the claim is correctly filled, the site must take the content down.
> Reddit apparently isn’t in the business of deciding whether or not a claim is legitimate.
That's the whole point of DMCA. If Reddit took a side, they would now be responsible for the copyright infringement. They may be able to filter the most egregious one, but it's still a risk.
When I was teaching myself 3D modeling for fun, I made a little blue mailbox like you'd normally see outside on American streets. Nothing fancy--it was low-poly and lacked any text or textures. It was just a blue box on four tiny legs with a rounded top. I uploaded it to SketchFab, because why not?
One day I get an email that the US Postal Service had my mailbox taken down from SketchFab via DMCA complaint. Apparently they hold at least two trademarks on the color and shape of their mailboxes. While I think my crappy art fell under fair use, it wasn't worth it to try and fight that.
What really makes me angry about the whole ordeal is that the USPS is a consistent money loser. So why are they wasting cash issuing DMCA notices to 3D modelers on SketchFab?
Can I just point out the insanity of 3D models being subject to trademark and copyright? You can take/paint/draw a picture of a mailbox and post it but if you make a 3D model all of the sudden the legal system loses it's goddamn mind. It's been a huge issue in the video game space where companies are suing for licencing whenever someone includes something in a game, including FOSS game efforts (Honda Jet removed from Flight Gear).
> if you make a 3D model all of the sudden the legal system loses it's goddamn mind.
This isn't a proof that you can't do it, a DMCA takedown is a way to avoid going to court to prove that you can't do it.
I guess you wouldn't get DMCA takedown over a drawing because it's probably clear that they would lose in court, while a 3D models hasn't been proved in court yet, thus you are less likely to want to push it to court.
It's a clear abuse of power. They don't do it because they are right, they do it because they can.
> Can I just point out the insanity of 3D models being subject to trademark and copyright?
Not sure if I agree. If a song is included in a game without license, it wouldn't fly either. Designs can be copyrighted and may not be copied by others without permission. If (game) designers want to use a mailbox in a game, why not make one themselves? Why use others' work without permission?
Stealing models byte for byte is obviously a copyright issue, as is stealing music
The issue is that companies can trademark the "form" of their products and therefore demand licencing fees so no, they couldn't just make their own mailbox because USPS would attempt to sue them for violating their trademark on the shape of the mailbox. Basically, it's become a shitty way of getting a forever-patent as well as rent seeking within totally unrelated industries.
Some common examples:
Model a tractor and make it green -> John Deere sues you
Model a car with no badges that looks vaguely like a Porsche -> Porsche sues you
Model a military jet designed entirely with taxpayer money -> Lockheed Martin/Boeing/Textron/Mikoyan/Sukhoi/etc sue you
Model a tube with some fins and add literally any military AGM/MIM/AIM/etc name -> Raytheon sues you
Model a AR style rifle and make the filename 'm4' -> Colt sues you
Mind you none of the above affect the respective industries of the listed companies.
Sorry if I misunderstood. I'm not entirely sure what you didn't mean but here's my best-effort attempt.
I think my confusion came from the example you cited in your previous post, about the Honda Jet that was removed from a game. The game, as I understand from [1], essentially includes a model of the Honda Jet which is an accurate 3D model of the real-world Honda Jet. It also bears the same name. None of your "common examples" go this far, they do 'resemble' the product that is allegedly sued over, but they are not 1:1 3D (computer model) renditions of the real-world products and are not named the same.
> Stealing models byte for byte is obviously a copyright issue, as is stealing music
Glad we agree.
> The issue is that companies can trademark the "form" of their products and therefore demand licencing fees
This is where we disagree. As a (hypothetical) "creator", I would like to exert control over what I produce, in line with the law, except when I decide to licence it in some liberal fashion (GPL/MIT/CC whatever). How is replicating a 3D model of a plane, along with the name, not an infringement of the rights of the creator? If you want to respond, please keep in mind that we are talking about current copyright and trademark law, not some utopia in which new laws can be enacted willy-nilly.
> they couldn't just make their own mailbox because USPS would attempt to sue them
Really? There is not a single mailbox design that doesn't violate USPS' copyright?!
I will concede that copyright terms are long, but not indefinite (although for practical purposes they may appear indefinite).
Finally, I would like to discuss this claim:
> Model a military jet designed entirely with taxpayer money
On the surface it seems ridiculous. But why would the government (1) outsource the contract to the listed companies and then (2) agree to terms which state that the copyright/trademark belongs to the outsourcing companies? If you think about both (1) and (2) it's either a major flaw in how government contracts work (could be...) or the companies want the intellectual property and have "priced it in" into the dollar value of the contracts. Essentially, if the IP was government property, the military jet would cost more taxpayer dollars. What do you think? Honest question.
> If you want to respond, please keep in mind that we are talking about current copyright and trademark law, not some utopia in which new laws can be enacted willy-nilly.
This is the problem though. I don't disagree with anything you said as far as what the state of current copyright/trademark law is, I just disagree with the laws and think they're immoral.
I consider the mailbox issue especially egregious. Lets say you want to make some content like the infamous American suburb map in Hitman 2. You want to create an environment that's relatable to your audience so you model a typical American subdivision with houses and roads and all the detail you could dream of. Then you get hit with C&D letters from USPS because you put down a letterbox that you'd see on any street corner, Ford for a Mustang you put in a driveway, another because an NPC was wearing a Polo shirt and so on until you have to totally neuter your concept. Meanwhile if hollywood wants to do the same thing for a movie, nobody bats an eye.
Nobody designed any of this stuff sitting in the conference room saying "...and here's how much video game licencing revenue we can expect for this letterbox..."
> companies want the intellectual property and have "priced it in" into the dollar value of the contracts
Trust me... they do no such thing. I've been involved with this several times.
At the end of the day, it's just leveraging a broken legal system for rent seeking because...they can!
I thought the poster was implying that the USPS was enforcing ownership even though they didn’t create or provide the content, so making your own mailbox wouldn’t help at all.
Yes. If I make an exact (3D model) replica of a mailbox, or analogously, a re-recording of a song that sounds exactly the same, the original designer of the mailbox or song can exert authorship rights through copyright action.
The fact that you did the effort of making the mailbox in a drawing program or re-recording the song doesn't mean its suddenly free of copyright.
Convince companies they'll make more money by encouraging unexpected product placement, instead of defending their current income streams by any draconian measure they can devise... /s
>What really makes me angry about the whole ordeal is that the USPS is a consistent money loser.
Insofar that the the USPS is a subsidized service, I don't agree that it is a money loser. Considering that the mail is the way that nearly all bills have been collected, historically, I'd say it has far more than paid for its self.
It's not that easy to qualify USPS as a money loser but a popular point that is repeated a lot. Usually the ones that promote that argument have an interest to privatize USPS and allow one of their rich donors (the ones able to acquire USPS) a license to print money.
That’s an oft repeated myth, but it’s not quite true, certainly not as broadly as stated.
From an article by the EFF:
> The circumstances under which a company could actually lose a trademark—such as abandonment and genericide—are quite limited. Genericide […] is very rare […]. Courts also set a very high bar to show abandonment (usually years of total non-use). Importantly, failure to enforce a mark against every potential infringer does not show abandonment.
I never understand why these agencies hold such tight control over their maps and schedules. I remember there was another case where (I think San Francisco but I am not sure) they blocked an app because they asserted copyright over their schedule. Instead they should embrace and encourage anybody who helps getting them a bigger audience. In general government data should be public domain.
If the choice is between blocking a well-made, free app and not blocking it then it's clear that they'd benefit more from not blocking it. Everyone would win.
But that's not the choice.
It's really a choice between blocking a well-made, free app and hundreds of other apps that vary in quality, price, etc, or not blocking any of them, or trying to assess each app on an individual basis. Not blocking anything means their own app will be lost in a swarm of low-quality rip-offs. Assessing each app is hard, and opens the door to complaints (and maybe law suits) about why one app was allowed and another wasn't. It's far simpler, easier, and dare I say fairer to block everything.
This line of thinking is pretty sad IMO, even if pragmatic at times.
The best way to get rid of low-quality copycat apps isn't to ban all apps, it's to go after the reason those low-quality copycats exist in the first place. That is, advertising. There's no point in making a garbage app unless you can trick some people into installing it, and monetize them before they notice and delete the app. Advertising (in general, meaning both showing ads and harvesting data for the advertising industry) is what enables these apps. Curtail that, and there won't be a need to make any choice here.
The free market doesn't work well with fly-by-night operations, or with sticker price being 0 and money being made indirectly. Advertising as main revenue source destroys the mechanism of competition and its consumer-facing benefits.
This line of thinking is what pushes me more and more against patents and copyright. A lot of creativity and innovation gets killed because somebody has a diffuse fear of something bad happening so let’s just kill everything.
You could argue this saves money in the long run. If a 3rd party resource is not clearly marked as third party, you can get angry people wasting customer service resources over a poorly made product.
Government agencies really don't like reversing course or admitting mistakes and will generally fight tooth and nail to avoid doing so unless ordered to by new management or a judge (don't get me wrong, private organizations do this too but they're much more apt to quietly make things right once it's clear they won't win in the court of public opinion).
So just by luck of the draw whatever bureaucrat came across Berman's map first thought to themselves "hey they can't do that" instead of "oh look, the public is building useful things on our work" and all the mechanisms used to fight a political turf war kicked into motion and once that happened there was no turning back.
Because if someone get a map that says train A leaves at time B, and it doesn't, it's MTA employees who will be on the receiving end of the angry customer, a good proportion of which won't care that it wasn't an official schedule (and some small fraction of that basically won't understand the difference between official and unofficial schedule). The fact the train didn't show up will also impact your reputation for timeliness, even if it was never your promise it would be there.
Plus, you know, if we can stretch our imaginations for a moment and imagine that maybe the organization gives a fractional iota of a damn about the customer's lives even beyond the direct impact to them, it's not a good customer experience for bad info to be floating around either. (Maybe not, you know, the NYC MTA, but at least some organizations are still small enough to at least think about that sometimes.)
They're not suing over bad data (unless it came from them to begin with). As this is a copyright case, they're suing over the parts that match their own official publications. It's also not necessarily true that third-party data is worse than the official sources; in some cases it can even be superior.
The post I was replying to asked why the agencies exert control at all, a broader context than this particular copyright issue. I was explaining why they might find that in their interests.
"It's also not necessarily true that third-party data is worse than the official sources; in some cases it can even be superior."
Well, an organization is hardly going to use that as part of its decision making. Organizations are essentially incapable of admitting that their job is being better done by someone else. So in terms of answering the question as it was asked it's not terribly relevant.
If you want to know why an organization might want to control its schedules, you need to empathize with it and put yourself it its/their shoes, not come at it as if you're still an outsider. Having extreme distaste for the organization merely means you're going to empathize and put yourself in the shoes of an organization you don't like; it doesn't change the basic procedure for understanding it.
A possible explanation is the lawyers share the same office as the graphics designers or cartographers (if you can call them that) who make the maps.
I could see (and have seen) some people’s response to identical works, especially one produced by the public that could even be better, as negative. Put simply, they want to maintain control over what they see as “theirs”. This happens internally in companies all the time. I’m sure it was just a matter of this designer CC’ing legal when they came across it. They probably made some bullshit case about maintaining control, liability, prior art, etc.
When I was at LinkedIn, it was common for 3rd party designers to redesign the UI of the site and post on their blog. This made a lot of designers who actually worked there angry. I noticed the better the design, the more upset they got. They largely ignored the ones that weren’t that good. They would push to have legal step in and thankfully we had management who could see reason and reel in cry-baby designers.
Anyway, this may not be what actually happened but I think it’s a high possibility. People are incredibly petty.
I wish I could choose how my tax dollars are spent. I'd like to avoid contributing to idiotic campaigns like this.
Perhaps some day government will modernize to the point where there's direct democracy and individuals can decide how to vote on policies and spending.
The new map fixes the fatal flaw of the MTA's own: it separates each line even when they run together, typically through Manhattan. It's the #1 most confusing aspect of the existing map and I've watched countless tourists get on the wrong train because of it.
KickMap (iOS) is another example of a map that improves in the same way. http://kickmap.com/
Earlier subway maps didn't combine lines that ran together, and the result was that the lines themself took up an absurd portion of the map. By combining them, you can view a lot more street-level info, which is important for navigating once you leave the subway system. Not sure what's confusing about combining them; stations explicitly state which lines stop there, and also indicate whether they are local or express stops.
To the unfamiliar, it's not obvious which lines go where. Yes, technically there are tiny numbers next to each station, but they're not as prominent as the bigger, colored bubbles, especially when you're peering at a map from a couple feet away.
You only have to watch tourists stare cluelessly so many times, get on the wrong train, go the wrong direction, etc. to understand that something isn't clear.
The MTA probably has some in-house counsels with nothing to do, so they go after trivial stupid stuff to justify their salary. I don't see any other reason for being so petty for something so insignificant.
This is exactly the kind of abuse you can expect given how easy and consequence-free it is to file a DMCA takedown request. If there was a real, financial penalty for filing obviously false and incorrect requests, I doubt they would waste their money on this. Since there isn't, it's clear from looking at the maps that someone at the MTA is pissed that someone outside their organization did a job that is so incredibly better than their work that it makes their map look like an outdated piece of shit from the 1800's. But that's just a matter of personal taste. Taste matters though, especially when someone in power feels like their taste has been offended and decides to use the courts and our extremely generic and consequence-free laws to enforce their own views.
Just so we’re clear, it’s tremendously useful to be able to visit any of these cities and understand the subway maps if you’ve already experienced any of the other three. Suing over a good UX decision is a dick move.
> The MTA only sent a takedown notice to Etsy, neglecting to contact Berman directly about the shop he runs where the map is also available. The map is still on sale there for $50. The MTA declined to comment on why it only issued a takedown notice for Etsy.
Classic DMCA abuse. Don't fight the hard battles, just send the notices and hope the company has some boilerplate process.
I am going to go against the grain here a bit. While I do think it is dumb that publicly funded IP isn't shared under a creative commons permissive license, I do think the maps do look very similar.
I'm having a little trouble finding the link, but I read an interesting article sometime in the past few years (possibly after it was posted on HN) about the difficulty of designing good metro maps. Geographically accurate maps would be cluttered and confusing, so lots of thought has to go into how geography is manipulated to make an understandable and visually pleasing design. The work that goes I to this is copyrightable, and I do think the two maps share a lot of these elements. Yes the independent map was worked on for 300 hours, but adding up all of the changes over the years probably amounts to thousands of hours to generate the original map.
Again I don't necessarily think this is a good use of government funds or time, but I don't believe the copyright claim is compeletely invalid.
I have to pick a nit here. In terms of copyright, effort matters only in a very specific way. Generally, only artifacts matter. The map is a thing. The creator of the map holds copyright.
Copyright is also very specific. It is literally the right to make copies. This becomes important when we talk about things like clean room design for reverse engineering. The wikipedia article gives a good summary: https://en.wikipedia.org/wiki/Clean_room_design
Independent invention is a valid defense in copyright claims. If you can show that two similar artifacts, e.g. a piece of bootloader code or a map, derive from independent work, then there is no violation of copyright, because no copy has been made.
The effort matters only insofar as its independence.
This stands in contrast to a patent which specifically protects an idea and its application.
Agree on most points here, but the article I think does some damage to any claim to "clean room" approach. He saw the one map and thought he could improve it. The map is all there is, there isn't a secret underlying implementation that can be ignored to accomplish similar goals and dutifully respect IP right be not de-compiling or otherwise reverse engineering. Copyright law definitely is a complicated topic, and I don't think there is a brightline I can point to, but being derived from something else I certain instances is a copyright violation. For written works, using the likeness of copyrighted characters in totally different storylines and universes is a violation of copyright.
I should have read more carefully, I didn't realize that the map he was frustrated with wasn't the one shown on the article. I do then agree that it looks like they are claiming copyright after copying his work which is definitely BS.
Copyright is about exclusive right to copy a work of art from some creative effort. Copyright is implicit upon creation of a work of art.
Patent is about means and ends. Process applied to achieve outcome. Patents must be approved by some authority.
Trademark is "recognizable sign, design, or expression which identifies products or services of a particular source from those of others" (from wikipedia [0]). A trademark may optionally be registered, but need not be (the difference between (tm) and (r)). Registered trademarks are governed by some authority in a given jurisdiction.
Copyrights and patents can expire. The property right need not be exercised to be maintained.
Trademarks can be maintained in perpetuity, but must be exercised, or else they may be lost.
Facts cannot have any copyright. Nor ideas. Only the creative expression of these can have copyright.
Ideas + specific process and application may receive a patent.
A clean room design for a map would include only geographic facts, but no creative representation of these. Similarly a clean room design of a piece of software would include only requirements, but no implementation details. A clean room design is not necessary to prove lack of copyright infringement. It is a strong defense against an accusation.
Derivative works are typically protected under copyright law. For a derivative work to not be an infringement of copyright, it must be itself a substantial creative effort. You'll notice that creativity is a significant part of copyright.
The application of creativity to create a new work means that there is a new creator with a new copyright. Definitionally, a derivative work is not copyright infringement. Failing to prove (in the face of an infringement claim) that something is a new, derivative work means that copyright infringement has occurred.
Characters may be subject to both copyright and trademark protections. For example, Mickey Mouse is trademarked by Disney.
There are several legal tests applied to characters when it comes to copyright. Simply, the character themselves must be important in the copyrighted work and be a creative element themselves. "Extras" cannot be protected by copyright - i.e. a villager with a pitchfork is not protected by copyright. A character who happens to be a villager, with distinctive characteristics that delineate them from other individuals and make them recognizable, and around whom the story revolves (and perhaps in the story, this person carries a pitchfork) may be protected by copyright.
I cannot put Harry Potter or his significant likeness into a new work. I cannot publish a 7-part series following the exploits of "chosen one" Gary Rotter in the school of Pigpimples School of Magic and Sorcery as he fights against the rise of "He Whose Name Cannot Be Spoken", and so on.
The name "Harry Potter" is likely trademarked. Assuming it is not, I certainly can tell a story about an old man named Harry Potter if my story is significantly different than J.K. Rowling's series.
This sort of thing is why satirical works are typically not copyright infringement.
Decompiling a program would be a copyright infringement, because there is no creativity there. It is a rote reproduction, specifically the thing that copyright says you cannot do.
> Again I don't necessarily think this is a good use of government funds or time, but I don't believe the copyright claim is compeletely invalid.
Maybe you missed this line from the article:
> But there is a potentially critical flaw in that logic. The MTA created The Weekender in 2011, two years after Berman created his map, which he uploaded to Wikipedia in 2009.
Of course they have to look similar, same as pictures taken by two different people of the same object will look similar. The representation of the routes is totally different (ignoring that they are colored lines).
"Looking very similar" isn't sufficient for a claim of copyright infringement. It can be suggestive of it, and used as support for an element of it, but it's certainly not sufficient on its own.
As an ex-New Yorker, the MTA has a horrible reputation in NYC (at least last time I lived there) due to its complete mismanagement of the subway. It's pathetic that they're devoting their resources to copyright trolling.
Intellectual property laws in the U.S. are broken, plain and simple. I hope this case leads to reform of these broken laws.
Side question -- on the guy's map, what's the meaning of the segmented ends of certain lines? It's where the lines appear to have divisions between stations in the line segment, such as the Z line in Brooklyn, A line in Rockaway, the 5 or B up in Bronx?
Is that designating express service? Seems very counter-intuitive to me to illustrate it that way.
Yes, thanks! It now makes sense, but I think it's very unsatisfactory visually. The divided segments make it look like the service has some break between stops, or this is very puzzling. And the "O"s mixed with the dividing lines and the subway line letter are highly confusing.
And by the way, for his legal case, if there was anything to point to the argument of derivative work, this would be it. It's clearly copying (because it's so confusing) the broken line segments style in the map you just linked.
Aside from the time traveling issues in the MTA complaint, I'm surprised the article doesn't mention how there would still be the derivative works defense, since after all its just a different map.
I nicer move would to say to the artist. We really like your work it’s better than the previous map. Let’s pay you for your work. Instead of paying the money for lawyers the could pay the artist.
Sometimes Names and occupations are a weird (and amusing) mismatch.
Lester Freundlich - the name literally meaning 'Friendly' in German - having to be the ~bad guy~ in this context, going after a private person selling some map online..
The artist would clearly win his case in court, and sounds like he has the resources to do it, so I'm not worried. And after all, the "geometric" style subway map has prior art as the London Tube map starting in 1931 [1].
But I can't imagine what is going on at the MTA that they felt compelled to try to take this down in the first place. What on earth do they think they're trying to accomplish with it? Is there some kind of legal liability they think they're protecting themselves against? They're a governmental agency for crying out loud.
It truly boggles the mind.
[1] https://en.wikipedia.org/wiki/Tube_map