Back in June, we wrote a story about how a private company was claiming it owned Muni arrival (and arrival prediction data). Calling themselves NextBus Information Systems (NBIS), the company made a practice of reaching out to folks creating applications for Muni data, and telling these people that, as the rightsholders of this data, they could make demands such as licensing fees or advertising placements.

In the case of Dustin Mierau’s MuniTime, NBIS COO Alex Orloff approached him, saying his company owned the arrival data delivered by the app, and demanding to place NBIS-controlled ads on the app. Mierau said no, “because I knew ads controlled by NextBus, if the design of their web application is any indication, meant poorly designed ads scaring the MuniTime interface.”

Another company, iCommute, was approached by Orloff, who this time was demanding a licensing fee. When approached for our earlier stories, Kelly Beener, spokesperson for AppTight, the makers of iCommute, said that “our understanding of the issue leads us to believe that NBIS is accurate in their assessment of their right to control the publishing of Nextbus predictions and therefore we are not inclined to seek a change in our agreement.” Their attitude towards NBIS remained consistently positive in a comment they made on the Appeal on July 20, when they said “we’re confident that NBIS is acting in good faith and in the best interest of all involved.” (They did not respond to an email from us for this story.)

From what I’ve seen, all (NBIS’s) claims are smoke and mirrorsBut are they acting in good faith? Apple, for their part, isn’t so sure. After Steven Peterson’s Routesy app, the subject of our earlier story, was removed from their app store after continued emails from Orloff asserting ownership of the Muni data used in the software, he refused to retreat. After sending repeated requests to Orloff and NBIS CEO Ken Schmier, asking them to remove the complaint they had filed against Routsey. After they refused, Peterson enlisted IT/New Media/tech issues lawyer Colette Vogele (disclosure: as we were founding the Appeal, we had an informational meeting with Ms. Vogele, but do not have a business relationship with her).

“Apple’s lawyers seem to prefer to speak to other lawyers” said Peterson. After a letter from Vogele laying out why they believed NBIS was not acting in good faith in laying claim to this data, Apple agreed, and Routesy returned to the app store.

“Now” says Vogele “we’re exploring if what (NBIS was) doing constitutes ‘interference.’ They were clearly infringing on Steven’s rights.”

So I take it you don’t think they have the right to license the data?

“From what I’ve seen, all their claims are smoke and mirrors. They need to put up or shut up — either show up with proof that they do have the copyright and ownership, or stop trying to take people as suckers.”

We called Alex Orloff to get his perspective, but he refused to communicate over the phone and requested an email. We’ve sent that, but have not received a response as of publication time. We will let you know if/when we do. But we did note something interesting: the NBIS web site, which was once, to put it kindly, bare bones, is now very similarly branded to NextBus’. However, what the company actually does remains a mystery.

Beyond a doubt…no one besides the SF MTA owns all Muni data.That inspired us to reach out to NextBus (which is not NBIS) representative (and open transit data advocate) Mike Smith. When we pushed him on the relationship between NBIS and NextBus, and NBIS’s NextBusalike branding on their site, Smith said “Though I acknowledge that there is clearly a great deal of confusion with respect to NBIS, their use of the name ‘NextBus’ and our logo, I have been asked to not discuss their relationship with NextBus Inc.”

However, regarding the data and its ownership, Smith says “SF MTA still has not fully cleared up this issue. We are waiting for them. I thought this would be resolved by now but the latest word from Muni is that they do not know when they can further clarify things.”

That’s not what the MTA says, however. Muni spokesperson, Judson True, says that in the MTA’s most recent contract with NextBus (which was approved August 4 by the Board and “is close to being finally certified”) “We took the legal steps to ensure beyond a doubt that no one besides the SF MTA owns all Muni data.” He sent us the portion of that contract dealing with this issue, which you can view at the bottom of this article.

NextBus’ XML copyright data hews to True’s assertion — while, in June, it claimed a copyright of “NextBus, Inc,” that has been changed to “San Francisco Muni,” Peterson and Vogele noted.

Though he has a lawyer and the MTA behind him, Routesey’s creator hasn’t gotten cocky. “I’m still waiting for the other shoe to drop with Alex (Orloff)” he said. “I have a hard time believing we won’t be hearing from him, again.”

And, given Orloff’s demeanor thus far, there’s a fair chance Peterson’s right. He’s promised to keep us posted, and we promise the same to you.

1.33. Ownership of Data. The City recognizes that the AVLS and related software provided by Contractor under the AVLS Contract are proprietary systems to which the City’s interest is limited to the license provisions set out in this Maintenance Agreement and in the AVLS Contract. Notwithstanding any understandings or agreements created prior to this Maintenance Agreement to the contrary, however, all data generated, transmitted, distributed, manipulated, compiled, stored, archived, or reported by the AVLS concerning SFMTA vehicles and operations, including but not limited to data concerning vehicle location, predicted arrival times, route and stop configuration and historic AVLS data is the property of the SFMTA without reservation of rights or other restriction of any kind. AVLS data concerning the location of SFMTA vehicles in real time and predicted arrival times are records that the City may make available to the public through passenger information display signs, data feeds (including but not limited to XML data feeds), internet web pages and weblinks, information kiosks, public information systems, PDA and cell phone applications, electronic messaging, and other technologies that may be utilized to inform persons wishing to access, process, or archive information concerning public transit in San Francisco. Contractor may retain and use copies of SFMTA AVLS data for reference and as documentation of its experience and capabilities.

the author

Eve Batey is the editor and publisher of the San Francisco Appeal. She used to be the San Francisco Chronicle's Deputy Managing Editor for Online, and started at the Chronicle as their blogging and interactive editor. Before that, she was a co-founding writer and the lead editor of SFist. She's been in the city since 1997, presently living in the Outer Sunset with her husband, cat, and dog. You can reach Eve at eve@sfappeal.com.

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  • Muni Diaries

    Might I be the first to say “hmph!” on NBIS. They be tryin to take our public data! Hmph!

  • Muni Diaries

    Might I be the first to say “hmph!” on NBIS. They be tryin to take our public data! Hmph!

  • Greg Dewar

    NBIS is a pair of douchebags, for sure, but NextBus (the real one) are a pack of assholes too, with their double talk and refusal to talk straight on this. Fuck them and fuck NBIS too!

    and iCommute paid the extortion, and look where it got them! nowhere! their app sucks!!

  • Greg Dewar

    NBIS is a pair of douchebags, for sure, but NextBus (the real one) are a pack of assholes too, with their double talk and refusal to talk straight on this. Fuck them and fuck NBIS too!

    and iCommute paid the extortion, and look where it got them! nowhere! their app sucks!!

  • Erik

    So when this Orloff guy makes outlandish claims about owning data that he apparently has nothing to do with then the correct reaction from a legal point of view is to assume that he is right until someone bothers to prove otherwise? And the company who would be most likely to own the data (if anyone could) refuse to confirm or deny the crazy guy’s claims?

    If I start a company called Nextbus Associates could I do the same thing? I feel like I’m missing out on something big here.

  • Erik

    So when this Orloff guy makes outlandish claims about owning data that he apparently has nothing to do with then the correct reaction from a legal point of view is to assume that he is right until someone bothers to prove otherwise? And the company who would be most likely to own the data (if anyone could) refuse to confirm or deny the crazy guy’s claims?

    If I start a company called Nextbus Associates could I do the same thing? I feel like I’m missing out on something big here.

  • Brock Keeling

    i second that. hmph!

  • Brock Keeling

    i second that. hmph!

  • Akit

    So let me get this right:

    NBIS has no relationship to NextBus, but Orloff of NBIS misrepresents himself as the big boss of NextBus to claim that he has the rights to Muni’s data?

    Isn’t that considered fraud?

  • Akit

    So let me get this right:

    NBIS has no relationship to NextBus, but Orloff of NBIS misrepresents himself as the big boss of NextBus to claim that he has the rights to Muni’s data?

    Isn’t that considered fraud?

  • Erik

    After reading the other articles and comments, it sounds like NBIS (headed up by the crazy guy) and the real Nextbus are both owned by the same parent company (Grey Island)? Grey Island probably created NBIS after acquiring Nextbus specifically to do asshole stuff like this while leaving the real Nextbus (who have to actually work with the MTA) with some plausible deniability about any attempts to restrict access to public data.

  • Erik

    After reading the other articles and comments, it sounds like NBIS (headed up by the crazy guy) and the real Nextbus are both owned by the same parent company (Grey Island)? Grey Island probably created NBIS after acquiring Nextbus specifically to do asshole stuff like this while leaving the real Nextbus (who have to actually work with the MTA) with some plausible deniability about any attempts to restrict access to public data.

  • Erik

    So presumeabley as long as the crazy guy at NBIS can bring in enough money from his baseless legal threats to cover his own salary then the strategy was a success. It’s not like they are going to go after their own subsidiary for misrepresenting their own contract terms.

  • Erik

    So presumeabley as long as the crazy guy at NBIS can bring in enough money from his baseless legal threats to cover his own salary then the strategy was a success. It’s not like they are going to go after their own subsidiary for misrepresenting their own contract terms.

  • Eve Batey

    Oh, man, you guys are making me feel bad that this wasn’t clear enough in my earlier article. Let me try to fix that:

    Grey Island (that’s the company that runs NextBus) acquired NextBus Information Systems in 2004. When they did, they made an agreement that says (according to Owen Moore of Grey Island):

    “A franchise right has been granted to the seller of the Nextbus business, Nextbus Information Systems Inc., for a period of 25 years, renewable for a further 25 years. The franchise relates to advertisement and subscription services of Nextbus and it is agreed that the Company will contribute towards the development of any product as it relates to the Franchise Agreement, contingent upon the mutual agreement between Company and Nextbus Information Systems Inc. Such development costs are to be borne equally by the parties, to a maximum potential contribution by the Company of US$200,000. To date, no development costs related to advertisement and subscription services have been incurred”

    The problem is, those rights weren’t Grey Island’s to promise, since the MTA is saying they own the rights to that data and NextBus has agreed to that.

    Does that help explain the players?

  • Eve Batey

    Oh, man, you guys are making me feel bad that this wasn’t clear enough in my earlier article. Let me try to fix that:

    Grey Island (that’s the company that runs NextBus) acquired NextBus Information Systems in 2004. When they did, they made an agreement that says (according to Owen Moore of Grey Island):

    “A franchise right has been granted to the seller of the Nextbus business, Nextbus Information Systems Inc., for a period of 25 years, renewable for a further 25 years. The franchise relates to advertisement and subscription services of Nextbus and it is agreed that the Company will contribute towards the development of any product as it relates to the Franchise Agreement, contingent upon the mutual agreement between Company and Nextbus Information Systems Inc. Such development costs are to be borne equally by the parties, to a maximum potential contribution by the Company of US$200,000. To date, no development costs related to advertisement and subscription services have been incurred”

    The problem is, those rights weren’t Grey Island’s to promise, since the MTA is saying they own the rights to that data and NextBus has agreed to that.

    Does that help explain the players?

  • Erik

    The goal is still that NBIS exists to make as much money as they can from data access shakedowns without involving the real Nextbus though.

  • Erik

    The goal is still that NBIS exists to make as much money as they can from data access shakedowns without involving the real Nextbus though.

  • somawally

    I’d like to hop on the 5-Fulton bus with Beth Spotswood, head out towards Ocean Beach so the two of us could kick back some beers at the Beach Chalet.

  • somawally

    I’d like to hop on the 5-Fulton bus with Beth Spotswood, head out towards Ocean Beach so the two of us could kick back some beers at the Beach Chalet.

  • Robert Bildeau

    I’d like to know how much money NBIS is stealing from MTC for the 511 real time Muni feed. If Colette Vogele and the Apple attorneys are right, I bet iCommute’s ransom was chump change compared to what MTC is forking over, and MTC should get some better attorneys.

  • Robert Bildeau

    I’d like to know how much money NBIS is stealing from MTC for the 511 real time Muni feed. If Colette Vogele and the Apple attorneys are right, I bet iCommute’s ransom was chump change compared to what MTC is forking over, and MTC should get some better attorneys.

  • Steve Rhodes

    Does a new NextBus contract mean the displays Muni installed as early as November 2007 will finally have useful information?

    http://www.flickr.com/photos/ari/2039509501/

    The beta display has been at the Van Ness station since at least June 2008

    http://www.flickr.com/photos/ari/2544400014/

    They’ve since added the beta to a display at the Embarcadero, but you’d think it wouldn’t take them over a year to have it in all stations unless it is some contract issue (when I asked someone from from Nextbus at TransitCamp in February 2008 why the displays were useless, he said they had just then signed a contract to design them).

    They should at least turn off the other displays until they are updated to save electricity.

  • Steve Rhodes

    Does a new NextBus contract mean the displays Muni installed as early as November 2007 will finally have useful information?

    http://www.flickr.com/photos/ari/2039509501/

    The beta display has been at the Van Ness station since at least June 2008

    http://www.flickr.com/photos/ari/2544400014/

    They’ve since added the beta to a display at the Embarcadero, but you’d think it wouldn’t take them over a year to have it in all stations unless it is some contract issue (when I asked someone from from Nextbus at TransitCamp in February 2008 why the displays were useless, he said they had just then signed a contract to design them).

    They should at least turn off the other displays until they are updated to save electricity.