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Tuesday, June 12, 2007
Blogging and Broadcasting

Yesterday, Howard discussed the NCAA blogging incident primarily from a First Amendment standpoint. I wanted to focus more on the intellectual property question and respond to two points raised in his post:

First Point: "I do not think the intellectual property argument can carry the day. Bennett was reporting facts--a home run was hit, a batter struck out--which cannot be copyrighted." [The newspaper's attorney, Jon Fleischaker, said something similar to that effect: "Once a player hits a home run, that's a fact. It's on TV. Everybody sees it. (The NCAA) can't copyright that fact."]

These comments tend to echo the rationale of the Second Circuit in NBA v. Motorola. However, there is no dispute that facts cannot be copyrighted because copyright law protects "original works of authorship." Thus, the fact that SportsTrax displayed on its pagers purely factual information on NBA games in progress was held not to violate the copyright of the broadcasts. But the debatable issue in Motorola was not the copyright issue, but whether SportsTrax unlawfully misappropriated the NBA's property right in its games; it is about the protection of property rights in time-sensitive information so that the information will be made available to the public by profit-seeking entrepreneurs. I happen to think Motorola was wrongly decided, and for a contrary holding involving the same issue, see Morris Communications, Inc. v. PGA Tour.

Thus, the NCAA would not claim that it has a copyright to the facts of the underlying event. The NCAA would instead argue that it has a right to control who disseminates reports and accounts of the game and to enter exclusive license arrangements with those who disseminate them. The NCAA would rely on the landmark case of Pittsburgh Athletic Co. v. KQV Broadcasting Co. In that case, KQV had its own paid observers watch the games from vantage points outside the stadium and on premises leased by KQV such that the observers could see over the stadium enclosures, and then broadcasted radio play-by-play descriptions of the games over its airways. The Pirates sued claiming that KQV was violating its exclusive radio broadcasting arrangement with NBC. The court correctly ruled against KQV: "The right, title and interest in and to the baseball games played within the parks of members of the National League, including the property right in, and the sole right of, disseminating or publishing or selling, or licensing the right to disseminate, news, reports, descriptions, or accounts of games played in such parks, during the playing thereof, is vested exclusively in such members."

KQV certainly would not be permitted to do inside the stadium what it was prohibited from doing outside the stadium. So whether Bennett is blogging inside the stadium or outside the stadium is irrelevant. Thus, I disagree with Howard's statement that "if Bennett had live-blogged the game off a television broadcast (which is usually how bloggers do it) there would have been no conflict with any broadcast rights. It cannot be different because he did it live, rather than from his living room." Simply, radio stations are prohibited from having personnel watch games on television from their living rooms and disseminate radio broadcasts of the game without a license. The key question to me is whether disseminating "in progress" reports and accounts of the live game over the internet constitutes a broadcast. If it does, then Bennett loses, which gets us to Howard's next point.

Second Point: "No rebroadcasting or retransmission without the express, written consent of the commissioner? So the NCAA was protecting its broadcast rights? Nope. Bennett was not broadcasting the game or using an otherwise-authorized broadcast for other purposes. He was reporting (i.e., talking about) what happened as he saw it happen. [Fleischaker made a similar remark: "The blog wasn't a simulcast or a recreation of the game. It was an analysis."]

I don't see how we can easily dismiss the broadcasting question. If Bennett is talking about what happened simultaneously as he saw it happen, how is that any different than a radio broadcast? Isn't what Bennett was doing simply a broadcast of the game over the internet? Bennett was providing in-depth analysis and play-by-play of the live event, which goes beyond merely providing updates of the score over a pager. This makes the situation distinguishable from Motorola, in which the court acknowledged two products constituting the NBA's primary business: (1) generating the information by playing the games; and (2) transmitting live, full descriptions of those games. The court was of the opinion that SportsTrax was not competing with the NBA's second product because SportsTrax was collecting and retransmitting strictly factual material about the games.

The rationale here is fairly straight forward: The value of any game is at its peak while it is being played. If a third party can transmit live, full descriptions of the games without a license, then it jeopardizes the league's property interest in the live event. When that happens, the league loses the incentive to produce the live event. And I'm not buying the "fair use" defense here. Bennett isn't informing the public in a limited manner about the outcome of the game. He is simply using his capacity as a newsreporter to disguise what he is actually doing -- broadcasting the event.


This is a very difficult question. I agree with you that some protection seems necessary to ensure that there's a financial incentive to create the event in the first place. See Zacchini. On the other hand, live-blogging the game is in the core area of free press: the reporter is describing in his own words a newsworthy event. See the Associated Press Case. Thus, the statement that "[t]he NCAA . . . has a right to control who disseminates reports and accounts of the game and to enter exclusive license arrangements with those who disseminate them" is overbroad.

Ultimately, I think the First Amendment issues in this case should be analyzed under Zacchini with the critical inquiry being whether the live-blogging creates a real threat that the allegedly infringing use would destroy the incentive to create the product in the first instance. I do not think such a showing could be made here.

Anonymous Anonymous -- 6/12/2007 9:05 AM  


I presume you believe that ESPN would not be permitted to have Kirk Herbstreet sit in the stands at a football game and provide an analysis of the game over the radio. How is that different?

Blogger Rick Karcher -- 6/12/2007 9:16 AM  

Professor Karcher,
Without having done any research on the topic, has any court ever determined that internet reporting/blogging equates to a broadcast? Today's culture is so web dependent I have to imagine blogging a live event would be deemed a broadcast, and this case seems to fit the mold of KQV.

Anonymous Brad -- 6/12/2007 9:42 AM  

Prof. Karcher:

It would depend on what Herbstreit is doing in the stands. If he's giving radio play-by-play, then I'd say that could be banned. If he's merely providing updates every 15 minutes or so, then I think it's allowed.

As for the distinction between radio and live-blogging, I'd argue that the mediums provide entirely different experiences, and most people who had a choice would listen to a live radio broadcast of a game over a live-blog of the game, so the financial injury from not protecting radio broadcast rights is greater. In addition, I don't believe teams currently sell live-blogging subscriptions to fans, which is evidence that the market for them is not vital.

I admit that the last argument is question-begging: if teams did sell such licenses, would that undermine the argument that live-blogging should not be protected? Perhaps. There's no doubt that the newness of the medium in question is influencing my views to some degree.

But you're point about broadcasting also raises another problem about my test: what if the loss of radio revenues wouldn't imperil the product? As I said earlier, this is a difficult area.

A question for you: would a live-blogging of Zacchini's human cannonball routine be protected under the First Amendment? A radio broadcast?

Anonymous Anonymous -- 6/12/2007 10:59 AM  

Has anyone taken a look at what the reporter was actually doing?

Using the "gut instinct rule of reason" a pitch by pitch account is a broadcast whether audio, video, or text. However if the reporter were just writing that "Smith is up next" followed by "Smith struck out looking with 1-2 count" or "Brown is looking sharp and just struck out Smith on four pitches", applying GIROR it would not seem to be a broadcast.

Anonymous Anonymous -- 6/12/2007 11:17 AM  

As far as what the reporter was doing, he was giving simultaneous play by play along with analysis. I don't have specifics, but it sounds like broadcasting to me. What if Herbstreet was "doing what he does best" in the form of internet blogging? I fail to see how that is any different than radio. If anything, I would say more people are on the internet these days than the radio. Thus, Brad's point that this seems to fit the mold of KQV is an excellent point.

So here's the main point. Anybody who is interested in the play by play of the game, and who is tuned in to Bennett's blogging while Bennett is watching the game, is NOT listening to the broadcast of the event via the NCAA's broadcasting arrangements, whether that constitutes t.v., radio, internet, whatever. Thus, the value in the NCAA's property right is being diluted when people are reading Bennett's description of the game. How much is the value being diluted? Who knows?

I think the Zacchini case supports the NCAA here because that case held that the entire broadcast was not permitted by the news reporting source because it simply goes beyond "news reporting" to broadcast the entire event. Broadcasting substantially less than the entire event (i.e. highlights), and AFTER the event takes place, looks more like news reporting than what Bennett was doing.

Blogger Rick Karcher -- 6/12/2007 12:51 PM  

I think you've added you own gloss to Zacchini by arguing that the fact that the reporting occurring AFTER the event was an important fact in the decision. As I recall, what controlled was the amount of information disseminated, not the timing of the dissemination. That being said, a live broadcast was not at issue in that case, so there is certainly room to argue that interfering with live events is more problematic. I'm just not sure that Zacchini supports that argument.

In any event, everyone seems to agree, whether their applying their gut instinct or Zacchini, that what's critical is the quality and quantity of information conveyed. At one end of the spectrum is Motorola and at the other is the live-Zacchini hypo. This case undoubtedly falls somewhere in the middle, but I'm not sure anyone has come up with a good test to apply. To the extent that you're arguing that any potential dimunition in the property value of sports broadcast is enough,I think you're test is overbroad because it would imperil Motorola, which I think it correctly decided (though I know you've been consistent and said it's wrongly decided). Therefore, I wouldn't be suprised if courts faced with this question just go with their gut instinct depending on the specific facts of each case.

Anonymous Anonymous -- 6/12/2007 1:09 PM  


I didn't say the court in Zacchini looked at reporting after the event as an important factor in the case. But I agree with you that interfering with live events makes this situation even more problematic than Zacchini.

I don't understand why "quantity and quality of information" is critical as you suggest. How is that legally significant?

I'm not very comfortable with a "gut instinct" test -- seems difficult to apply. It's really a simple test, and it's called the definition of "broadcast" for purposes of the Copyright Act. The Act was amended in 1976 to specifically deal with sporting events and provides that it must be an "original work of authorship" (i.e. Bennett's script of the game) and "fixed in any tangible medium" (i.e. the newspaper's website). And the "fixation" must occur simultaneously with its transmission, which is happening when Bennett is blogging the play by play and providing his own analysis.

Blogger Rick Karcher -- 6/12/2007 1:49 PM  

Prof. Karcher:

I would want to know more about the definition of a "broadcast" under the Copyright Act, but at first glance it seems clear that Bennett is NOT violating the Act by live-blogging. A sports team does not have a copyright in the game itself. Rather, it has a copyright in the broadcast of that game, i.e., in the specific audio or visual transmission that it puts out. Assuming that Bennett was providing entirely his own commentary, he was not "rebroadcasting" or "retransmitting" a copyrighted broadcast, he was simply broadcasting or transmitting an entirely new broadcast in which he would have a copyrightable interest.

The Pittsburgh Athletic Co. case does not appear to be to the contrary because it does not purport to interpret the Copyright Act. Rather, it interprets the tort of unfair competition under state law and does not even mention the First Amendment concerns raised by the decision. Unless this case has been incorporated into copyright law, I do not see how it supports your view of when a copyrightable broadcast has been infringed under the Copyright Act.

The case does, however, support my theory that the "quantity and quality" of information disseminated controls whether activity is protected by the First Amendment under Zacchini. After all, the activity at issue in Pittsburgh Athletic Co. was a play-by-play broadcast of a baseball game in 1938, which is akin to showing a live video of a game today. Thus, the Bennett case is more appropriately considered under the rubric of the appropriation tort, see Zacchini, not by analogy to copyright law.

Anonymous Anon 1:09 -- 6/12/2007 4:00 PM  


I first want to say that I am enjoying our discussion. But what you said in your first paragraph is just not accurate. If what you are saying is true, it would mean that ESPN people could sit in the stands, watch the game and simultaneously broadcast over the radio without permission. The league owns the "broadcasting right," whether the league actually does the broadcasting itself or licenses that right to a third party, like ESPN. The copyright then attaches to the recorded transmission. But if a third party wants to record the transmission (i.e. the original broadcast) or do a re-transmission, it needs permission to do that. And Pittsburgh Athletic is still good law because it simply stands for the point that the league/team owns the right to broadcast the live event that the league/team produces.

Zacchini is actually a right of publicity case. What is the First Amendment argument here? Is it because it's a newspaper that's doing the blogging? Fair use is typically the defense raised in a First Amendment context, and, as I stated in my original post, a live blog of the entire event simply would not constitute fair use.

There seems to be this notion that the internet is something that contains free information for all of society to use. [It happens in the context of the fantasy league/right of publicity issue as well.] Nothing is free, and the laws regarding intellectual property/right of publicity are not altered by the fact that internet technology makes communication and information gathering so easy and efficient. Because of it, we should actually be MORE concerned about protecting intellectual property rights as opposed to being less concerned.

Blogger Rick Karcher -- 6/12/2007 4:41 PM  

I may be restating a point already covered several times by Professor Karcher, but I finally had a chance to re-read the Pittsburgh Athletic v. KQV decision, and the following conclusion made in the opinion fits nicely with the fact that the NCAA sold broadcast rights (both TV and Internet):
"The right, title and interest in and to the baseball games played within the parks of members of the National League, including Pittsburgh, including the property right in, and the sole right of, disseminating or publishing or selling, or licensing the right to disseminate, news, reports, descriptions, or accounts of games played in such parks, during the playing thereof, is vested exclusively in such members."
That being said, I fail to see how the "quality and quantity" of the broadcast even becomes an issue.

Anonymous Brad Jones -- 6/12/2007 5:02 PM  

Prof. Karcher:

My first paragraph addressed solely that argument that Bennett's live-blogging violated the Copyright Act. Based solely on the authorities you've cited (I have only second-hand knowledge of copyright law), it does not appear that Bennett violated the Copyright Act.

He does seem to be engaged in unfair competition under the Pittsburgh Athletic Co. case, but that case addresses a theory -- unfair competition -- that is distinct from copyright law.

Therefore, whether you call the sports team's claim here violation of a property right, tortious intereference with prospective business relations, or an unfair competition claim, that claim would arise under state law, not the Copyright Act.

If that is correct, then we have to decide when "appropriation" or "interference" rises to the level of a tort under state law. I would argue that there should be a spectrum, with Motorola on one end and Pittsburgh Athletic Co. on the other. The differnce between the cases is the "quantity and quality" of the information being disemminated by the alleged tortfeasor, or in other words, the level of "appropriation" or "interference" -- and thus financial harm -- that is occurring. Thus, whether Bennett's conduct could be tortious should depend on what exactly he was writing. If he was engaged in a full play-by-play, then you've convinced me that he may be engaged in unfair competition.

I think the First Amendment comes into play because whatever limits are put in place do interfere with the reporting of true facts about newsworthy events. Zacchini is relevant here because it was technically not a right of publicity case. Rather, it addressed the constitutional question of whether Ohio right of publicity law could, consistent with the First Amemdment, bar the broadcast in question. Therefore, Zacchini is really about how the First Amendment limits state regulation, rather than a opinion that directly explores whether the right of publicity tort is wise policy. (Of course, the court could not decide that question in any event, because it's a question of state law.)

Anonymous Anon 1:09 -- 6/12/2007 8:29 PM  


But it is connected to copyright law because the property right of the league is the right to broadcast the live event. The definition of a copyrightable broadcast is derived from the Copyright Act, and the Motorola case addressed that issue and determined that underlying facts of the game are not copyrightable (hence, the fact/expression dichotomy). But a play by play with commentary is a "broadcast" because it consists of an expression, which the league/team has the rights to. So the Copyright Act is definitely relevant, but I think we are on the same page there.

So for the sake of argument, let's assume that it was a play by play and therefore (as you said) you would be convinced that it constitutes unfair competition. [Note that in this context we have defined it as a broadcast, which, as I previously stated, is the simple test for a violation -- it's either a broadcast or it isn't and I think your spectrum with the "quantity/quality" concept becomes confusing]

But what confuses me even more is that you seem to be suggesting that we should take an additional step and now subject this blogging broadcast to a First Amendment analysis under Zacchini. If that's the case, why wouldn't every non-licensed broadcaster make that argument? Why doesn't ESPN argue that the CBS/NCAA $6.2 billion contract violates ESPN's First Amendment right to broadcast March Madness and its ability to report on a newsworthy event? [And you can't answer it by saying that the blogging newsreporter is just informing the public about facts because we are assuming here that it's a broadcast and not just score updates].

Blogger Rick Karcher -- 6/13/2007 7:07 AM  

Prof Karcher:

I agree that the Copyright Act's definition of broadcast may inform what interests are protectable under state law, but I do not believe state law is bound to follow that definition (assuming the answers to certain preemption questions that I know nothing about).

Because states may grant property rights (or recognize unfair competition claims) that encompass more or less than "broadcasts" under the Copyright Act, I think there is a two step analysis. First, what does state law protect, or, looking at the question from the opposing side, when does state law forbid an entity from disseminating true facts about newsworthy events because such dissemination would constitute appropriation of a property right or unfair competition under state law. Once we've ascertained the conduct state law forbids, then we must examine whether state law can forbid that conduct consistent with the First Amendment.

I believe your analysis skips the second step because you equate property rights available under state law to the definition of "broadcasts" under the Copyright Act. Because protecting such "broadcasts" under the Copyright Act does not violate the First Amendment, it follows a fortiori that protecting them under state law would also not violate the First Amendment, and therefore my second step is superfluous.

Assuming I have you're theory right, there are two responses. First, once the interests protected under state law differ from the definition of broadcasts under the Copyright Act, then the a fortiori argument falls apart and the First Amendment analysis is once again necessary. Second, the a fortiori argument itself is flawed because the Copyright Act and state law are protecting different things. Let's take it as a given that protections for broadcasts under the Copyright Act are constitutional. That means that, consistent with the First Amendment, the government can forbid retransmission or redistribution of the very same broadcast. Indeed, that result follows from the Associated Press case. What does not necessarily follow, however, is the idea that the government can, consistent with the First Amendment, forbid a different broadcast covering the same event. In other words, the copyright analogy explains why I cannot tape a Yankees game from the YES Network and then charge people to see my public showing of that tape. The analogy does not explain why I cannot go into the ballpark, make my own bootleg video, and sell that video in real time (the Pittsburgh Athletic Co. case). To make this leap we need another concept: legal protections that forbid not just retransmission or redistribution, but original transmissions that interfere with the property or business rights of an entity. That legal concept is unfair competition or an analogous concept under state law. Zacchini addresses when these types of state laws run afoul of the First Amendment, and thus is relevant here.

As to your hypo, I think it's quite clear that, under Zacchini, ESPN's March Madness claim is meritless. But I stand by the proposition that Zacchini does require an examination of the type of information conveyed and the likelihood that unfettered dissemination of such information would have a material negative impact on the financial incentives that create the event in the first place.

As I stated earlier, you've convinced that live-blogging or something like the gamecasts available on could be forbidden under the First Amendment. But, as noted above, I think this follows from Zacchini, not from an analogy to the Copyright Act.

Anonymous Anon 1:09 -- 6/13/2007 11:12 AM  

Sorry Anon, I can't let you off the hook that easy. I had one question for you in my last comment about whether ESPN would have a First Amendment claim against the NCAA based on its $6.2B exclusive license contract with CBS. And here is what you said about that: "As to your hypo, I think it's quite clear that, under Zacchini, ESPN's March Madness claim is meritless." Please tell me why.

Also, are you saying that the league's right to grant exclusive broadcast rights in the live event in any form it wants (under state law) affords the league less protection than the rights of the broadcaster under the copyright act? If no, then what is the significance of making the state law/copyright distinction for purposes of our discussion?

Blogger Rick Karcher -- 6/13/2007 11:50 AM  

Prof. Karcher:

ESPN wouldn't have a "First Amendment claim" against the NCAA because the NCAA is not a state actor. Rather, ESPN would assert the First Amendment as a defense if it disseminated a bootleg copy of an NCAA tournament game and was then sued by the NCAA or CBS.

As for whether ESPN's First Amendment defense would win in such a case, I think it's clearly controlled by Zacchini. In Zacchini, the court held that broadcasting the human cannonball's entire skit was not protected by the First Amendment. As you've mentioned earlier, a live dissemination of the same material would be a fortiori not be protected under the First Amendment. If, on the other hand, ESPN only gave live updates on scores of NCAA games, then I think that would be protected by the First Amendment.

As for your second question, the analyses under state law and the Copyright Act may be quite different. Under the copyright regime, we're asking how much of the very same broadcast can be used (presumably under the fair use doctrine) before the use becomes copyright infringement. Under the state law regime, under which a claim against Bennett would arise, the question is to what extent does Bennett's conduct in disseminating information that he produces create such an interference with or appropriation of the rights of the NCAA and the U of L that it becomes an actionable tort. I would want to know alot more about fair use under the Copyright Act before I was comfortable with saying the two analyses are the same.

Anonymous Anon 1:09 -- 6/13/2007 12:18 PM  

So are you saying that CBS can't be assured that its $6.2B contract TOTALLY prevents ESPN from broadcasting the event, and that it only assures CBS that its broadcast won't be retransmitted by ESPN? In other words, if ESPN personnel bought March Madness tickets and brought to the game with them some technology gadgets enabling them to create a broadcast of their own, are you saying that ESPN would have a First Amendment defense if sued by the NCAA or CBS? If the NCAA can't prevent ESPN from doing that, then CBS doesn't really have an "exclusive" broadcast license, it has a license that just gives CBS more convenient access to the games than other broadcasters.

If you are saying that ESPN loses under Zacchini, then so does the blogging reporter because it's the same (i.e. both are broadcasting the entire event) -- that's all I was getting at in making the analogy.

FYI, see New Boston Television v. ESPN (holding that ESPN's videotaping from public airways, excerpting and rebroadcasting "highlights" of copyrighted broadcasts was not fair use under the Copyright Act).

Blogger Rick Karcher -- 6/13/2007 12:59 PM  

Prof. Karcher:

I'm confused by your response. As I said in my last post, CBS's license would be exclusive because ESPN's First Amendment defense would fail under Zacchini.

I do not think it necessarily follows that, because ESPN's First Amendment defense would fail, Bennett's First Amendment defense would fail as well. A live television broadcast clearly conveys more information ("quality and quantity" again) about the event, and thus infringes on the financial interests of the NCAA and UofL to a much greater degree than live-blogging does. After all, CBS paid $6.2 billion for a television, not a live-blogging license, and I doubt anyone who had the option would prefer to access the live-blogging rather than watch the game on television. Thus, I don't see how live-blogging is the "same" as a live television broadcast.

That being said, I think live-blogging presents enough of a threat to the financial interests of the NCAA and UofL that it can be forbidden under Zacchini.

Based on your description, the New Boston Television case is consistent with the arguments I've presented in this thread because it involves retransmission of portions of the same broadcast, rather than the dissemination of original information about an event over which another entity has an exclusive broadcasting license.

To clarify our disagreements (to the extent any remain) how would you respond to the following questions:

1) If Bennett were to be sued for his live-blogging, a valid cause of action would may lie against him under state law, not the Copyright Act. Yes or no?

2) Which of the following facts about an on-going baseball game can a third-party disseminate:
(a) - the fact that the event is occurring and where it's occurring
(b) - the current score of the game
(c) - (b) plus short descriptions of summary game statistices (e.g., Yankees 4 Red Sox 3, Pettite, 5.2 IP, 3ER; Jeter, 1-3, HR)
(d) - (c) plus who's at bat currently and who's currently pitching along with the count and any runners on base
(e) - (d) plus play-by-play descriptions of each pitch (e.g., ball 1 (outside), line drive to center, pop-out to short)

3) What test are you applying to give your answers to question 2?

4) Does your answer to question 2 depend on the medium in which the facts are dissemminated, e.g., is it more problematic if the information is delivered by a live person over the radio or via live-blogging?

Anonymous Anon 1:09 -- 6/13/2007 1:34 PM  


I question whether the extent of financial gain should have any bearing whatsoever on the analysis. Even if the exclusive blogging broadcast rights only brings $100, that's $100 that the NCAA has a right to.

1) yes

2) As I said before, I think Motorola was wrongly decided, but the first question under Motorola would be who is the third party and how is the third party getting this information? -- that's important from a "free riding" standpoint for purposes of misappropriation. I would say only a) and maybe b) [until the completion of the game that is], but Motorola would most likely permit a) through d) [again, depending upon the extent of "free riding" on the part of the third party]. Presumably e) constitutes a "broadcast", so under no circumstances could the third party do that, which is what the blogging reporter was doing.

3) Using a "fact/expression" dichotomy under copyright doctrine and then applying state misappropriation law to the facts disseminated (using a standard based upon the extent of free riding)

4) Absolutely not

Blogger Rick Karcher -- 6/13/2007 2:39 PM  

Prof. Karcher:

I think we're now very much in agreement.

I agree that the cause of action against Bennett arises under state law, not the Copyright Act. I also agree that "free riding" should be barred and can be barred under the First Amendment. See the Associated Press case.

Finally, since I believe Motorola is rightly decided, I agree with your answers to question 2.

I enjoyed the discussion.

Anonymous Anon 1:09 -- 6/13/2007 2:50 PM  


I enjoyed the discussion too. I love to argue with people who end up agreeing with me :)

Blogger Rick Karcher -- 6/13/2007 3:10 PM  

Prof. Karcher, I often agree with your analysis, but I think it's off-base here. (No pun intended.)

First, let me address your question to Anon: as to whether ESPN can place someone in the stands to do play-by-play. It seems to me that the only significance of the reporter being in the stands is that the team can use contract law to prohibit it. (That is, a condition of entry to the stadium is agreement not to do a competing play-by-play.) Other than that, I don't see that question as any different than the one about sitting in the living room. (This also addresses your question about ESPN and March Madness.)

It seems to me that where your analysis goes off track is at the beginning, because you assume your conclusion: that the NCAA has a property right to the undiluted monopoly value of the broadcast rights in the game. I don't see a basis -- other than the KQV case, which I disagree with just as you disagree with Motorola -- for such a sweeping proposition. I think we all agree that copyright doesn't apply here, so what's the source of this right?

Zacchini, as you note, was a right of publicity case. But that's a personal right, not a right of the league. And Baltimore Orioles rejects the notion that it applies in this situation anyway. So what property right does the league have in the game that isn't preempted by copyright?

I think you place far too much emphasis on the notion that this is a "broadcast." Assume for the sake of argument that whatever is being done rises to that level. I don't understand the significance of that point to you. The Copyright Act gives the league a copyright in its own broadcast, but that's irrelevant to the question of whether someone can produce an independent broadcast; the Copyright Act gives the league no power to prevent that. Any such power the league has must originate elsewhere.

The fact that the NCAA purports to sell an "exclusive" right to broadcast its games does not in fact mean that the NCAA possesses the ability do so. (Does that diminish the value of what the NCAA is selling? Very likely. But the mere fact that the value of one's property is diminished doesn't inherently create a cause of action; there must be a preexisting cause. After all, surely Feist's actions diminished the value of Rural's publications, but that in and of itself didn't give Rural the power to stop Feist.)

I don't see how New Boston applies at all. That was copyright infringement. We have no copyright infringement here.

Of course, I realize that you deal with Motorola by arguing that it was wrongly decided. But perhaps it would be clearer if I knew what you thought was wrong about the decision. Do you think misappropriation survives preemption? Do you reject the Baltimore Orioles case?

Blogger David Nieporent -- 6/15/2007 7:22 AM  


Thanks for the comment.

You say that where my analysis goes off track is that I'm assuming my own conclusion that the NCAA has a property right in the "undiluted monopoly value" of the broadcast rights. I never used those terms. I only use the term monopoly when I'm analyzing an antitrust issue, which has no relevance whatsoever here. But for some reason, and it totally baffles me, the term "monopoly" (which has a negative connotation) is often used whenever leagues seek to maximize profit from the product they develop and produce, which happens in the fantasy league debate as well. [I guess every business enterprise in America is a monopoly then.]

You and I just disagree on the extent that third parties should be permitted to profit off of the efforts of sports leagues (whether it be the NCAA or professional leagues) in producing a product -- which is nothing more than an entertainment product. Basically, it boils down to a debate over property rights. You disagree with me and think KQV was wrongly decided. That tells me that you believe in a basic concept that the public has some sort of a right to the product. Well, where does THAT right come from? So I could say the same thing to you, i.e. your analysis assumes a conclusion. I've cited a case (KQV) that supports the league's property right to control broadcasting. What case do you have that says the league doesn't? Therefore, I'm not making a "sweeping proposition" as you suggest.

You agree with Motorola and I disagree with it. And here however, I cited a case that contradicts Motorola (PGA Tour). I disagree with Motorola because I believe that the league's interest in maximizing profit from the product it produces should at least last until the end of the game. Now, I would be willing to talk exceptions to that, for example in news reporting contexts if ABC wants to report score updates periodically during the game. However, SportsTrax and broadcast blogging is not news reporting -- they are simply providing the public with access to the live event from an "entertainment" aspect, not a "public-informing" aspect.

Here is the issue I struggle with. If the original broadcast is absolutely protected by the copyright act as you acknowledge (meaning the broadcaster owns the copyright), why would the league have any lesser of an interest when it is not the broadcaster and instead licenses the right to a third party? You seem to be suggesting that the league can prevent third parties from producing an ORIGINAL broadcast under the law only if the league does the broadcasting. If that's your interpretation of the law, I don't understand the rationale for why it should be that way. Why should the fact that the league chooses to license the broadcast rights to the event it produces give it lesser protection. So when the NCAA signed a $6.2B contract with CBS with language providing that CBS has the exclusive RIGHT to the original television broadcasting, are you suggesting that the NCAA really doesn't have those rights to convey?

Blogger Rick Karcher -- 6/15/2007 9:00 AM  

Prof. Karcher:

You state: "You seem to be suggesting that the league can prevent third parties from producing an ORIGINAL broadcast under the law only if the league does the broadcasting."

I don't think that's what David meant at all (though he's surely capable of speaking for himself). Rather, the gist of his argument is the same as mine: whatever right the NCAA or UofL is enforcing against Bennett comes from state law, not the Copyright Act. Therefore, the question is when does state law forbid activities that will interfere with the prospective economic advantages of another party. (I think it's more useful to think of this is a tort case -- see KQV, which was decided on unfair competition grounds -- rather than a property case.) There are few areas of the law more hazy than when competition becomes "unfair," but you've both taken rather extreme positions in my view. I think both Motorola and KQV are rightly decided, and the line must be drawn somewhere in the middle.

Anonymous Anon 1:09 -- 6/15/2007 9:58 AM  

Anon and David,

Forget the distinction b/n state and federal law. What's the answer to the basic question! Can leagues prevent third parties from broadcasting, or not?? If not, then why not? You're answering the question by saying, well, it's governed by state law and therefore the answer is not clear. Pretend you're a judge and you have to make a decision today.

Blogger Rick Karcher -- 6/15/2007 10:20 AM  

It's a question of fact as to how much the live-blogging is likely to impact the financial value of the current licensing agreements. Or, as an alternative method of proof, how much would the right to sell an exclusive live-blogging license be worth?

Anonymous anon 1:09 -- 6/15/2007 2:32 PM  


It's not a question of fact. It wasn't a factual issue in any of the cases we have discussed: KQV, Motorola, Zacchini, the fantasy league case, etc., etc.

Blogger Rick Karcher -- 6/16/2007 8:24 AM  

What is different between posting score, time, stats, etc. on the Internet in real time. . . and what you see at more stadiums every week--the real-time posting of score, time/period, situation, pitcher/batter, etc. on out-of-town video boards (places such as Cleveland, Toronto, Milwaukee, Philadelphia, Pittsburgh, Atlanta, etc.) or putting highlights up, like one may see on a cut-away for ESPN, on the stadium's video board . . . even for a different sport?

Anonymous Anonymous -- 6/23/2007 2:49 AM  

to whom it may concern,

i look for the Motorola Basketball SportTrax device. in 1997, the Motorola and
Stats Corporations jointly produced a pager-type device called SportsTrax,
that receives and displays score updates of US live sports games. since
SportTrax services have been discontinued in 2000, it is impossible to
still purchase this device. also on ebay it is not available. would it be
possible to direct me towards ways of finding one of these old devices? i
would appreciate any advice you can give me. thanks!

very best,


Anonymous Anonymous -- 4/08/2008 4:23 PM  

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