
The MTA is going after an Etsy artist over a New York subway map it didn’t make - danso
https://www.vice.com/en_us/article/qjd8j3/the-mta-is-going-after-an-etsy-artist-over-a-new-york-subway-map-it-didnt-make
======
crazygringo
> _“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.

It truly boggles the mind.

[1]
[https://en.wikipedia.org/wiki/Tube_map](https://en.wikipedia.org/wiki/Tube_map)

~~~
throwaway_tech
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.

~~~
logfromblammo
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.

~~~
Lammy
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](https://en.wikipedia.org/wiki/Trap_street)

~~~
bonyt
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.

[https://en.wikipedia.org/wiki/Feist_Publications,_Inc.,_v._R...](https://en.wikipedia.org/wiki/Feist_Publications,_Inc.,_v._Rural_Telephone_Service_Co).

[https://en.wikisource.org/wiki/Feist_Publications_v._Rural_T...](https://en.wikisource.org/wiki/Feist_Publications_v._Rural_Telephone_Service/Opinion_of_the_Court)

[https://en.wikipedia.org/wiki/Fictitious_entry](https://en.wikipedia.org/wiki/Fictitious_entry)

------
lightbyte
>“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.

~~~
sitkack
The MTA is a government org, how can it even own the copy right to ‘its’ map?

~~~
SamBam
You'd be surprised. Some cities even claim copyright over their own laws.

[https://abovethelaw.com/2017/10/can-you-copyright-the-
law/](https://abovethelaw.com/2017/10/can-you-copyright-the-law/)

~~~
TallGuyShort
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.

~~~
zentiggr
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.

~~~
TallGuyShort
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.

~~~
nybble41
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.

------
dmix
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.

~~~
ravenstine
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.

~~~
soulofmischief
The DMCA has always totally sucked. It was anti-user, pro-corporation from the
beginning.

------
tvanantwerp
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?

~~~
AWildC182
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).

Why can't we just leave art alone?

~~~
itcrowd
> 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?

~~~
AWildC182
This is not what I'm saying.

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.

~~~
itcrowd
> This is not what I'm saying.

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.

[1] [https://torrentfreak.com/honda-takes-copyright-infringing-
je...](https://torrentfreak.com/honda-takes-copyright-infringing-jet-
flightgear-140603/)

~~~
AWildC182
I think you get what I'm saying then.

> 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!

------
Ididntdothis
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.

~~~
onion2k
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.

~~~
TeMPOraL
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.

~~~
Ididntdothis
The free market should separate good from bad apps like it does with
everything else.

~~~
TeMPOraL
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.

------
iamleppert
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.

------
sbussard
"we have an obligation to protect on behalf of the people of New York"

This is complete BS and they know it. But just in case there's any doubt, why
not ask the people of NY what they think?

~~~
gowld
This is the sort of thing de Blasio should love getting out in front of.

------
brenden2
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.

~~~
hellisothers
Looking at the Prop system here in CA, that’s a double edged sword (with a
knife for a hilt)

------
robbiemitchell
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/](http://kickmap.com/)

~~~
bobbylarrybobby
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.

~~~
robbiemitchell
Here's an example: [https://dsh.re/5677b](https://dsh.re/5677b)

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.

Compare to this view of the same section from KickMap:
[https://dsh.re/1a003](https://dsh.re/1a003)

It's instantly clearer which train goes where.

------
whoisjuan
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.

------
mnm1
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.

------
hinkley
Oh, gee, they look too similar? You mean like the New York, London, Tokyo and
Paris subway maps look similar?

Maybe Paris and London should sue the MTA for copying their maps.

~~~
hinkley
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.

------
blackearl
> 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.

------
jaltekruse
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.

~~~
greggyb
> The work that goes I to this is copyrightable

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](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_.

~~~
jaltekruse
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.

~~~
teddyh
> _He saw the one map and thought he could improve it._

No. Reportedly, he created his map in 2009, while the MTA published theirs in
2011.

~~~
jaltekruse
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.

------
JDiculous
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.

------
supernova87a
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.

~~~
whlr
It's rush-hour-only service. He's using the notation from the official map
[1], but I think he forgot to put it in the key.

[1]
[https://upload.wikimedia.org/wikipedia/commons/3/3a/Official...](https://upload.wikimedia.org/wikipedia/commons/3/3a/Official_New_York_City_Subway_Map_vc.jpg)

~~~
supernova87a
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.

~~~
matthewowen
Broken line is pretty common for partial/variable service.

For example, here it is on a philly trolley map:
[https://www.septa.org/maps/trolley/city.html](https://www.septa.org/maps/trolley/city.html)

And you can also see the same sort of thing on this BART map:
[https://www.bart.gov/system-map](https://www.bart.gov/system-map)

~~~
supernova87a
I agree, but I think there's something odd about the way he's put the segments
in his map. Maybe the divisions need to be bigger breaks or something.

------
rdiddly
The WTF question is not "Why does a giant agency care about this tiny issue"
but rather "Why does a public agency think it's a private business?"

(Sure sure, it's a corporation, but its owners are ultimately the taxpayers.)

------
rolltiide
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.

------
RayMan1
He got a free commercial in major news outlets thanks to MTA

~~~
takeda
true, but at the same time the link on Etsy was removed...

~~~
unethical_ban
[https://fiftythree.studio/products/new-york-city-subway-
map-...](https://fiftythree.studio/products/new-york-city-subway-map-print-
original-art-poster?_pos=2&_sid=d30d64bc2&_ss=r)

------
lmilcin
I wonder, when somebody finally gets seriously pounded for blatantly
exploiting DMCA.

------
acd
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.

~~~
Ididntdothis
Exactly. They should embrace stuff like this.

------
darklajid
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..

