Photo by buckofive.

Previously, we noted that Google Transit in the DC region has stalled, and discussed Metro’s license terms. While Metro has released data under a license, Google isn’t willing to accept Metro’s license, and is instead waiting for Metro to agree to their terms. Are Google’s terms reasonable? Should Metro sign the agreement as is, or negotiate further?

We don’t completely agree on this question, so we’ve structured this article as a point-counterpoint. Below is Michael’s opinion; David’s response follows.

Metro should sign Google’s agreement

by Michael Perkins

Google’s boilerplate agreement is very simple, for a legal agreement. Google asks for a royalty-free license to actually use the data. The agreement defines how a transit agency makes its information available and keeps it up to date. It allows Google control over the “look and feel” on Google’s site.

Metro also warrants that it has the power to enter this agreement, and that it’s not violating any copyrights or patents by letting Google use the schedule data. As an information service provider, Google needs to be reasonably assured that when they use copyrighted content or trademarks, they are using them with permission or making a fair use. If another entity provides the content under a license, Google need assurance that that party has the legal capability to do so.  The surest way of doing this is to require that the other party be financially responsible if they’re wrong — to “indemnify” Google.

Google also requires Metro to indemnify them against any other lawsuits arising from Gogole’s use of the transit data. Contrary to what I thought before, it doesn’t look like they’re concerned about being sued if the data is wrong.  There’s a general disclaimer in the Google Maps terms of service that protects both Google and Metro against any inaccuracy in data.

Other terms limit liability, establish a mutual confidentiality agreement, and provide for terminating the agreement. This is all pretty standard for a legal agreement between two companies that might want to do business.

In my opinion, Google’s terms are reasonable. They have to deal with hundreds of transit agencies.  It doesn’t make sense for Google to negotiate individual agreements with those agencies.  It also would not make sense for Google to allow various transit agencies to have some sort of prior approval or veto power over the look and feel of their website.  Negotiating how the data is displayed with hundreds of organizations would not be feasible.  Other terms like how to terminate the agreement, or providing for confidentiality do not appear to be objectionable.

So either Google budges and signs Metro’s “take it or leave it” agreement, or Metro budges and signs Google’s.  There doesn’t seem to be much of a compromise position between them.  Metro is accountable to local governments, who are accountable to the transit riders who are clamoring for Metro to partner with Google.  Google is accountable to executives and shareholders, who are not likely to make an exception for one transit agency when they have been successful in obtaining agreement from the vast majority of the transit agencies in the US and many agencies abroad.

I also heard from sources in the transit industry that Metro is concerned about losing revenue from their website, which includes a trip planner.  From various sources I’ve heard that the amount at stake is anywhere from around $70,000 to $200,000 per year.  This is essentially a rounding error in Metro’s budget of almost $2,000,000,000 ($2 billion) per year.  According to my discussion with Bibiana McHugh of Portland’s TriMet, the agency that first pioneered Google Transit, they have not seen a decrease in traffic to their website after partnering with Google, but instead they’ve seen many visitors driven to their website by links provided within the Google Transit service.

It hurts Metro’s riders more to not be a part of Google Transit than it hurts Google to have almost every other transit agency in the country except Metro.

Metro should negotiate the best terms from Google it can. It should work with Google to upgrade the specification to allow time-based fare information. Then, it should sign the agreement Washington area transit riders can enjoy the benefits Google Transit.

Metro stated that they would provide comment after publication.

Metro should leave it; Google should take it

by David Alpert

We don’t know exactly what the sticking point is between Google and Metro. If Metro is holding out for some revenue, then I agree with Michael that they need to drop the issue. Just as it wouldn’t be appropriate to charge money for people to look at the bus map, so is it inappropriate for Metro to try to monetize the schedules. It’s public data from a public agency. We’re all entitled to know when and where buses and trains will stop.

It’s also in our region’s best interest to make it as easy as possible for people to find information on as many types of technology as possible. That means letting anyone build an application, whether they’re a multibillion-dollar company or a guy in a garage. Putting the data online for free is the best way to encourage innovation. And anyone who builds something useful to riders is furthering Metro’s mission.

However, if the sticking point is indemnification, then both agencies need to give in. As Michael argued before, it’s silly for Metro to demand that a guy in a garage who hacked together an iPhone application pay for all attorney’s fees and any settlement if someone decides to sue WMATA over something in the application. At the same time, though, it’d be wrong for Google to demand that Metro pay all of their costs if someone sues Google.

The copyright and trademark indemnification makes sense. Unfortunately, record companies have pressured Congress to keep increasing the penalties for even small copyright infringements, so that if Google broke an IP law, they could suffer huge costs way out of proportion to the harm. But we know Metro can promise Google that Metro has the rights to Metro’s logo. That’s not the issue.

The other indemnification, on the other hand, doesn’t make a lot of sense. Google does have a disclaimer on Google Maps denying responsibility for anything a user might do based on the information there, but that doesn’t stop frivolous lawsuits. Google will just have to defend itself against frivolous lawsuits. They already do that all the time.

Instead, Metro should provide the data under “take it or leave it” terms. Here’s the data. Use it, don’t use it, it’s up to you. And Google already takes data under those terms. They take Greater Greater Washington’s data to include in their search engine, for example. We don’t have to sign an agreement indemnifying them. Some people have sued Google over the content of their search engine because they weren’t happy with the results. Fortunately, those people lost. Google, or anyone else, ought to be able to grab some data off the Web and make a search engine without needing permission for everything.

Everyone benefits when information gets shared without complicated legal agreements. If only big companies with lots of lawyers can negotiate to use information, then the little guy can’t keep up. Ideally, Google wouldn’t be negotiating all these agreements; instead, all transit agencies would just put their data on the Web, and anyone could use it. But transit agencies are used to dealing with big suppliers that have big legal departments and negotiating agreements over everything.

Google has a lot of lawyers too, and I don’t believe it’s too hard for them to adjust the agreement. In fact, I have absolutely no insider knowledge about this, but I suspect they already modified some of the agreements with other large transit agencies like New York City’s. My guess is that the indemnification isn’t the sticking point in the negotiations, anyway.

What should Metro do? It’s simple. They need to release their data with no complicated terms, with no price tag, and with no indemnification requirement. Then, the ball’s in Google’s court to accept the “take it or leave it” data. If Google doesn’t take the data under those circumstances, we can run a letter-writing campaign pressuring Google to give in. But I suspect it wouldn’t ever come to that.

Michael Perkins blogs about Metro operations and fares, performance parking, and any other government and economics information he finds on the Web. He lives with his wife and two children in Arlington, Virginia.

David Alpert is Founder and President of Greater Greater Washington and Executive Director of DC Sustainable Transportation (DCST). He worked as a Product Manager for Google for six years and has lived in the Boston, San Francisco, and New York metro areas in addition to Washington, DC. He lives with his wife and two children in Dupont Circle. Unless otherwise noted, opinions in his GGWash posts are his and not the official views of GGWash or DCST.