Washington Metro Area Transit Authority Goes After Flex Your Rights

Mike Riggs | January 8, 2009

Back in October, the Washington Metro Area Transit Authority implemented a shady bag-check policy in order to protect metro riders from terrorists. ("Shady" because the WMATA did its best to enact the policy without getting feedback from riders, and because the policy doubles as a way to boost drug confiscations). In response to the new policy, members of Flex Your Rights, a nonprofit that seeks to "teach people to understand, appreciate, and assert their constitutional rights during police encounters," gathered en masse outside the Dupont Circle Metro station near downtown D.C. and handed out fliers explaining that the bag checks are voluntary, and that riders who wish to avoid them should politely decline a search and leave the station. 

According to Flex Your Rights' Scott Morgan, the WMATA was irked that Flex Your Rights used its logo on their fliers without permission, and promised to sue the group if it didn't destroy the remaining fliers and issue a public apology by Jan. 5. It's now Jan. 8, and Flex Your Rights has yet to say sorry:

The Washington Metro Area Transit Authority (WMATA) has threatened us with legal action due to our use of Metro's "M" logo on our informational flyer about refusing random searches. Metro alleges that our use of the logo on the widely-distributed flyer constitutes a violation of their registered servicemark and has promised legal action if we do not destroy all remaining flyers and issue an apology by January 5th.

The 5th has now passed, and we have no intention of complying with Metro’s ill-conceived intimidation tactics. We’re well aware that the 1st Amendment protects "fair use" of trademarked material for the purpose of criticism. The ACLU of the National Capital Area has agreed to represent us in the event that Metro files a lawsuit. Our attorney Art Spitzer contacted Metro in a letter today, urging that the legal threats against us be promptly withdrawn to avoid an inevitable loss in court.

It's good to see Flex Your Rights stand up to the WMATA over the use of the logo, but I would like to point out that fair use isn't protected by the First Amendment.

UPDATE: After a heated (but well-meaning) email exchange, FYR's Scott Morgan directed me to an article entitled "The Interdependency of Fair Use and the First Amendment," which effecively explains the connections between the 1976 Copyright Act and the First Amendment. Here's a rather lengthy, but fascinating excerpt:

The first amendment balances an individual's right to free speech against the needs of society; the copyright clause, at base, balances an individual's right to control his or her work against society's need for access; however, the focus within most copyright conflicts is between one individual's economic claim in copyright against another's economic claim to use. The result is a common legal view of copyright as a grant of property to a creator against a claim to property by a user. The actual policy upon which the copyright clause is based and which supports public access, fades from discussion altogether.

To understand the commonalities in the goals of the policies behind the free speech grant and the copyright clause would lead to characterization of the copyright statute as regulatory rather than proprietory in nature, and would eliminate a claim of conflict between the copyright clause and the constitutional intent of the first amendment.

Other possible resolutions to this conflict reside in two aspects of the copyright law: 1) the law restricts access to the expression of an idea but not to the idea itself, and 2) application of fair use. But the idea/expression dichotomy fails to protect public access to information. Particularly with the ubiquity of digitized information, the access that would be allowed to ideas is limited. Digitized communication often merges the form of expression of the idea with the idea itself, so that the idea cannot be extracted from its protected form. The copyright law was developed at a time when technology had not yet advanced to a level at which it was common for ideas and expressions to become so intermingled that public access is hindered. We can no longer rely on the idea/expression dichotomy established by the copyright law to ensure the advancement of learning and knowledge creation. Fair use, then, becomes of utmost importance for protecting the public's right to information when the idea/expression dichotomy ceases to function as an assurance of protection for first amendment values.

Some legal scholars argue that a first amendment exception should be applied when the idea/ expression dichotomy fails to support the policies that ensure public access to information; but the first amendment exception is neither established law nor is it often applied by adjudicators. Fair use, then, is the only assurance of access to the information that forms the basis of free speech.

See below for a short, safe-for-work video documenting Flex Your Rights' activities at the Dupont Circle Metro (shot and edited by yours truly):

Comments

|1.8.09 @ 12:52PM|#

"...I would like to point out that fair use isn't protected by the First Amendment."

Is it possible to criticize a government entity in this situation without naming them? Possible to name them properly without their logo?

I'm no legal scholar, but it seems to me like there's a First Amendment issue in there somewhere.

cunnivore|1.8.09 @ 12:55PM|#

The ACLU of the National Capital Area has agreed to represent us in the event that Metro files a lawsuit. Our attorney Art Spitzer contacted Metro in a letter today, urging that the legal threats against us be promptly withdrawn to avoid an inevitable loss in court.

Maybe it's just because I'm totally uninvolved in this, but I'd love to see WMATA get this inevitable loss in court. Let them have enough rope to hang themselves, guys.

|1.8.09 @ 12:57PM|#

Interesting, but not as interesting as people fighting the bag searches. Good for them on both counts.

Mike Riggs|1.8.09 @ 12:57PM|#

I'm not sure where a govt. entity suing someone over use of a servicemark falls in terms of historical case law. I'm interested to see if any other commenters can shed some light on this.

|1.8.09 @ 1:07PM|#

Obama wants to take more of your money and give it to "infrastructure" projects. Like growing the public employment infrastructure. Transportation authorities need to increase their litigation budgets.

It is amazing how otherwise intelligent people can not recognize what a fraud he is.

|1.8.09 @ 1:08PM|#

Know your rights... all three of 'em.

LurkerBold|1.8.09 @ 1:10PM|#

Curious that this front group wants to stop bag searches right before the inaugration when the vast majority of people attending will be using the metro.

|1.8.09 @ 1:19PM|#

Were Metro a truly government entity, copyright would not be an issue because AFAIK government cannot copyright material developed at taxpayer expense.

WMATA aka "Metro" is a quasi-governmental entity, which basically means it has all the authority of government (eminent domain, police powers) without any direct accountability (WMATA board members are appointed by DC, MD and VA but not directly elected or accountable).

Kudos to Flex Your Rights for taking on Metro. Remember that Metro police (WTF) once handcuffed a 12-yo girl for chewing gum on the subway. Metro badly needs a comeuppance.

|1.8.09 @ 1:22PM|#

ClubMedSux you are *such* a punk, which I mean with the utmost respect.

sage|1.8.09 @ 1:35PM|#

Someting tells me that if they were handing out fliers that said "Help the WMATA catch terrorists and drug dealers" along with the logo there would not have been a stink raises.

LurkerBold|1.8.09 @ 1:39PM|#

John,

So why don't we just help them catch the terrorists in suits who keep trying to corporatize everything?

|1.8.09 @ 2:20PM|#

Shorter Scott Morgan:

TO: WMATA

FROM: Flex Your Rights

Fuck you.

If you have any questions about this memo, please call 1-800-FUC-KYOU.

kinnath|1.8.09 @ 2:25PM|#

So why don't we just help them catch the terrorists in suits who keep trying to corporatize everything?

You are just so incredibly fucking boring.

Paul|1.8.09 @ 2:26PM|#

The Washington Metro Area Transit Authority (WMATA) has threatened us with legal action due to our use of Metro's "M" logo on our informational flyer about refusing random searches.

Fuck them. Fuck them with highly polished knobs on. That logo is owned by the people of DC.

Oh wait, I forgot, all public property is theft. You can't use that logo! It's public property!

|1.8.09 @ 2:31PM|#

Back in the 80s, I used to take the last train out of Georgetown, when me or a friend had something to spare for a pitcher or two at the Red Lion. ...and maybe one of those roast beef sandwiches with the Russian dressing. ...or some George Washington girls wanted to meet us at Odds... But I diverge.

I remember one time being a bit tipsy when the real last train came through, the one that went through and collected all the money. There'd be this announcement, "Step back from the train and don't make any sudden moves.", the doors would open, and out came the Metro cops with the shotguns trained right on you. I mean you could only stand so far back from the damn thing, and God help you if you were, um, tipsy and didn't hear the announcement.

Sticking a shotgun in people's faces, people who aren't doing anything wrong, in other circumstances I think that's called "simple assault".

Other Matt|1.8.09 @ 2:37PM|#

It is amazing how otherwise intelligent people can not recognize what a fraud he is.

You're another one who needs a remedial program of shouting "CHANGE!" every five minutes, and whacking yourself in the side of the head when any thought questioning the new masters jumps in. I can see it now.

sage|1.8.09 @ 2:42PM|#

I remember one time being a bit tipsy when the real last train came through, the one that went through and collected all the money.

So were you Wesley or Woody?

EJM|1.8.09 @ 2:44PM|#

Back in the 80s, I used to take the last train out of Georgetown, when me or a friend had something to spare for a pitcher or two at the Red Lion.

I assume that you mean Foggy Bottom, as (a.) that's where the Red Lion is, and (b.) there's (still) no Georgetown station.

(For any potential tourists out there, to get to the heart of Georgetown via Metro, it's probably best to get off at Rosslyn and walk across Key Bridge; however, you won't be able to do that for the inauguration.)

|1.8.09 @ 2:44PM|#

So how come when I was in DC last week, I got on and off the Metro numerous times and never saw anything about a bag check? We had several bags with us (camera bag, diaper bag, backpack) but nobody every asked to look inside...

|1.8.09 @ 2:49PM|#

"So how come when I was in DC last week, I got on and off the Metro numerous times and never saw anything about a bag check? We had several bags with us (camera bag, diaper bag, backpack) but nobody every asked to look inside..."

Random checks at a few stations at a time, and even then, they don't search everyone with bags.

EJM|1.8.09 @ 2:49PM|#

So how come when I was in DC last week, I got on and off the Metro numerous times and never saw anything about a bag check? We had several bags with us (camera bag, diaper bag, backpack) but nobody every asked to look inside...

I can't speak for anyone else here, but despite the numerous signs concerning the potential searches, I haven't seen any actually take place yet. (FWIW, my usual Metro trip is between Friendship Heights and either Bethesda or Medical Center.)

Other Matt|1.8.09 @ 2:56PM|#

Obama wants to take more of your money and give it to "infrastructure" projects. Like growing the public employment infrastructure. Transportation authorities need to increase their litigation budgets.

Previous snark aside, to my understanding based on the various trade groups I deal with is that it truly will be spent on actual infrastructure, not necessarily transit. With that premise, most of the projects that could be rapidly put into play are not "construction" (ie-increase type) projects, but "repair" type projects. Therefore, I'd expect to see a lot of road rebuilding, bridge replacements, etc. Slapping a couple of extra lanes on I-270 from Gaithersburg north isn't something that can happen quickly. Neither is WMATA putting extensions on the DC Subway system, too many right of way issues involved, even with liberal application of eminent domain. To have any effect, they'll pull a bunch of off the shelf projects which are mothballed awaiting funding.

It would be a relatively quick way to inject money actually doing something. Right now you have a double impact of infrastructure contractors laying off due to weather issues, and economic issues. A number of fly by nights were created by the housing/development bubble, and when that popped they started into public construction, and they're now being shaken out as they were over their heads. It's creating a huge excess capacity with workers, who essentially function as a commodity in the market. This, in turn, allows for very little time lag if the designs and cash are available.

There have been a couple of very high profile water main breaks, and a lot of money could be well spent upgrading water lines and sewer capacity. However, typically these are semi private entities (Such as WMATA), and the money transfer isn't so easy, nor quick.

|1.8.09 @ 2:58PM|#

"I haven't seen any actually take place yet."

Same - although it wouldn't surprise me at all if they were choosing not to do them during rush hour.

|1.8.09 @ 3:29PM|#

I am curious how the DC Metro was able to service mark the "M" logo in the first place. For longer than the DC Metro has existed, it has been the "universal" symbol for subway, all over Europe, even in countries where "Metro" isn't spelled with an "M".

It's Kleenex! It's Aspirin! It's not theirs to have in the first place.

CB

The Wine Commonsewer|1.8.09 @ 3:35PM|#

I'm not sure where a govt. entity suing someone over use of a servicemark falls in terms of historical case law. I'm interested to see if any other commenters can shed some light on this.

Neither am I, but Chicago Transit Authority succesfully asserted it's rights to the trademark (tradename?) almost 40 years ago (Dude, can that possibly be right?) and forced the rock band formerly known as Chicago Transit Authority to change their name.

I'm not clear why a government agency needs to protect a trademark or even have one anyway.

Then again, I'm sure some drone somewhere can make an argument that we can't have terrorists building pretend entrances to the Metro in order to entice the proles into death rooms around DC. You would need the 'M' to make the concrete bunker-like incineration chamber look legit.

|1.8.09 @ 3:42PM|#

we can't have terrorists building pretend entrances to the Metro in order to entice the proles into death rooms around DC.

Slow down, there, TWC. Why not?

The Wine Commonsewer|1.8.09 @ 3:48PM|#

Slow down, there, TWC. Why not?

No, No, that is the bureaucratic drone's argument as to why the 'M' must be trademarked. The fake entrances to the Metro which might be (or are) death chambers (incineration chambers) will not entice the public to come to their deaths unless the entrances have an 'M' to prove that they are actual entrances to the real Metro (which they are not). So, by protecting the trademark, DC Metro strikes a blow against terrorism and protects the commuter from certain death at the hands of our enemies.

Other Matt|1.8.09 @ 3:57PM|#

You would need the 'M' to make the concrete bunker-like incineration chamber look legit.

True, and you know that anyone with such a plan would say "Damn, it's trademarked, oh well". Kind of like gun free zones, per this classic.

(which links to this. Thank god terrorists have such hangups about women, this could cause their recruiting to soar otherwise)

The Wine Commonsewer|1.8.09 @ 4:12PM|#

gun free zone

That's classic and, believe it or don't, I hadn't seen it before. :=)

|1.8.09 @ 4:36PM|#

"...I would like to point out that fair use isn't protected by the First Amendment."

IIRC there was some type of fair use created by the courts due to the first amendment. Subsequently fair use was enshrined in statute by congress. So the relation between fair use and the first amendment isn't as clear cut as this statement would imply.

Publilius|1.8.09 @ 5:55PM|#

Everyone here seems to be confusing Trademarks with Copyrights. It's copyrights which have fair use provisions and such. IANAL, but I think the transit authority has a pretty good case because it's their trademark which was used without permission. I believe the courts have ruled against fair use for trademarks.

If the group had quoted a couple of paragraphs from the transit handbook, that would be fair use of a copyrighted item.

Criticizing MacDonalds and including a couple of paragraphs from their nutrition handbook is fair use of copyrighted material, but handing out hamburgers with wrappers saying Big Mac is a clear violation of a trademark.

Publilius|1.8.09 @ 6:05PM|#

As an example of a trademark, note that you cannot sell anything with "three-peat" on it without paying a royalty because it's a trademark:

http://en.wikipedia.org/wiki/Three-peat