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Uber Wins Dubious Honor Of Being First Big Tech Company To Bully A Small Nation Using Corporate Sovereignty

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Six years ago, when Techdirt first started writing about the investor-state dispute system (ISDS) -- or corporate sovereignty as we prefer to call it -- it was largely unknown outside specialist circles. Since then, more people have woken up to the power of this apparently obscure element of international trade and investment deals. It essentially gives a foreign company the ability to threaten to sue a nation for millions -- even billions -- of dollars if the latter brings in new laws or regulations that might adversely affect an investment. The majority of corporate sovereignty cases have been brought by the extractive industries -- mining and oil. That's not least because many of the laws and regulations they object to concern environmental and health issues, which have come to the fore in recent years. New legislation designed to protect local communities might mean lower profits for investors, who then often threaten to use ISDS if they are not offered compensation for this "loss".Big tech companies, for all their real or supposed faults, have not turned to corporate sovereignty as a way of bullying small countries -- until now. En24 News reports that Uber is threatening to invoke corporate sovereignty in a dispute with Colombia. According to Uber:

a series of recent measures by the Republic have had a serious adverse impact on Uber's investments in Colombia and the viability of its operations in the country. On December 20, 2019, for example, through the Superintendence of Industry and Commerce ("SIC"), the Republic ordered Uber, Uber Colombia, and another Uber subsidiary that will virtually cease to make the Uber Platform available of Associated Drivers and passengers in Colombia.
Uber points out:
other companies in Colombia and third countries that offer similar forms in Colombia have not undergone the same treatment and continue to operate in Colombia without similar interference from the Republic.
The company claims a wide range of harms:
The illegal order of the Republic to block the Uber Platform in Colombia also constitutes an act of censorship in contravention of international human rights instruments that protect net neutrality, freedom of expression on the internet and freedom of use of the internet.
At the moment, this is all just saber-rattling, designed to encourage the Colombian government to unblock Uber in the country. If it doesn't, the company says, it will invoke the ISDS Articles (pdf) of the 2012 United States-Colombia Trade Promotion Agreement, and ask a tribunal to award compensation. Even if the current threat to use corporate sovereignty is not followed through, it is surely only a matter of time before another big tech company joins the ISDS club.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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posted at: 12:00am on 17-Jan-2020
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Why Is The NYC MTA Going After A Random Artist Who Created A Different Subway Map For Infringement?

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It's been a while since we last wrote about the New York City Metropolitan Transportation Authority (MTA), but in the past, it's always been for incredibly stupid reasons. There was the time it claimed it owned the facts of its schedule and went after someone who created a better scheduling app. There was the time it claimed that its "unlimited rides" card really meant no more than 90 rides. We didn't write about this other one, but a few years back, the MTA actually sued a bagel place for calling itself "F Line Bagels." And now we have it filing an incredibly questionable copyright takedown notice over someone making a nicer subway map.The NYC Subway map is fairly iconic, but that has never stopped people from making their own variations. Indeed, making new subway maps of NYC and many other metropolitan train systems is something many people do (there's even a -- somewhat addictive and amazingly fun -- subway map design simulation game called Mini Metro). Jake Berman is one of many people who redesigned the NYC subway map, after getting upset with the official MTA subway map. His map is consider so useful compared to the official one, that the Wikipedia page for the NYC subway map shows his directly next to the official map:

That's Berman's map on the left there. And he has it in a few places, including Etsy. And for unclear reasons, the MTA sent a copyright infringement takedown notice over the map. The Vice article, linked above, includes one of the best quotes ever about this kind of thing from copyright lawyer Thomas Kjellberg:
The basic question [for the MTA] offered Thomas Kjellberg, an intellectual property attorney with the law firm Cowan, Liebowitz, and Latman, you guys really give a shit?
There are obviously strong fair use arguments here, as well as strong arguments about whether or not anything in Berman's map is actually infringing. While the MTA claims that his map copies a specific style of NYC subway map, the so-called Vignelli map, the currently used version of the Vignelli map from the MTA, was actually created after Berman's map was created:
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.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.Even so, Berman thinks his map stands alone on its merits. Even assuming that I had a time machine, he wrote via email, they're not the same thing.
It helps that Berman, himself, is actually a lawyer. He seems to understand that whatever may have been "copied" here certainly wasn't copyrightable.
To prove his case, Berman listed eight differences between his map and Vignelli's. For example, they display lines running along the same route differently. Berman uses different symbols for trains that only stop on nights and weekends. Vignelli uses gentle curves whereas Berman uses hard angles. Berman shows streets and labels neighborhoods. They use different colors and shapes for geographic landmarks. He went on, and added that he could have continued to go on for much longer.In general, the only major similarities are that both are subway maps and both use 45-degree angles in our diagrams, which has been standard transit map practice since 1933, Berman asserted. It's certainly not copyrightable.
The bigger question, still, is why? Why does the MTA care? Yes, it can sell some Subway map posters, but honestly most people probably want to buy the official one -- not some random dude's (even if it is a nice map). The article also notes that there are a ton of other NYC subway maps on Etsy that the MTA didn't go after.The whole thing is so strangely stupid. Even if you could (and you shouldn't) argue that because he was selling prints, that somehow harms the MTA's own merch and licensing business, as Vice points out, that's a negligible source of revenue for the MTA anyway.But there's an even larger point here: as we've discussed many times in the past a government agency doesn't and shouldn't need copyright. It has perfectly practical incentives for creating a map: to get people to use the Subway. That's how it makes its money. It should want more people creating compelling maps that get more people to ride the subway. And, instead of fixing the incredibly broken down Subway system, it wants to waste its time on this nonsense?

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