This is one of the most ignorant moves by officials that I’ve seen in a while. It will be quite entertaining to watch the Kentucky blogosphere on this one, and to watch the officials go down in flames. Geez. This is a wild one. If you see updates or other posts, please put them in my comments. This is an issue I’d like to dog. (And this means I’ve officially moved on from Fred and Brittney.)
Courier-Journal sports reporter Brian Bennett had his media pass revoked and was ordered to leave the press box during a college baseball game Sunday because of what the NCAA said was a violation of its policies prohibiting live Internet updates from its championship events. “It’s clearly a First Amendment issue,” says C-J executive editor Bennie Ivory. “This is part of the evolution of how we present the news to our readers.” …
What next? Are they going to confiscate cell phones?
Maybe if you use them on their property. What happened to private property rights? As I wrote in the comments, I don’t see why there’s a first amendment issue. There is no right to press credentials. They can’t stop a sportwriter from live-blogging an event he’s watching on tv or listening to on the radio, but who says the NCAA has to let him do it from the press box?
I didn’t say it was a smart policy. It’s a dumb one. But it’s not an unconstitutional one, far as I know.
It might not even be so dumb — and live-blogging even a broadcast may also not be so legal. Why should a school provide facilities to someone who is competing with an income-generating exclusive live coverage concession? The issue here is not whether the facts are bloggable — they may or may not be, depending on how you get them. As I said, there’s no constitutional right to do so from the other guy’s facility. And in fact there is a difference between “sports facts” — such as statistics, and which cannot be legally monopolized — and “hot news.” Apart from copyright, there is such a thing as a “hot news misappropriation claim” for actions where
(i) the plaintiff generates or gathers information at a cost; (ii) the information is time-sensitive; (iii) a defendantâ€™s use of the information constitutes free-riding on the plaintiffâ€™s efforts; (iv) the defendant is in direct competition with a product or service offered by the plaintiff; and (v) the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.
The leading case, and the source for the above quote, is National Basketball Assâ€™n v. Motorola, Inc., 105 F.3d 841 (2nd Cir. 1997), which technically stands for the rule that a claim for misappropriation concerning material within the realm of copyright remains can be viable despite the general rule of copyright preemption. The facts of seem particularly applicable here. In Motorola, the NBA asserted a claim under New Yorkâ€™s law of unfair competition by misappropriation. Motorola sold a paging device that was used, inter alia, to supply information about NBA games while the games were in progress. The information that was supplied to the pager came from reporters who were watching the games on television or who were listening to them on radio. The District Court, relying on New Yorkâ€™s broad misappropriation law, found Motorola liable. On appeal, Motorola argued that it could be found liable under the copyright law or not at all, because the Copyright Act preempts all state law claims. The Second Circuit held that a portion of New Yorkâ€™s misappropriation law survived preemption and that the contested use of Motorolaâ€™s device did not fall within the portion of the copyright law and had not been preempted.
Is this the law in Tennessee? I don’t know. Whether you have a hot-news tort or not, you could also have a copyright in the broadcast, which would not apply to live-blogging from the location — but then you have the right to make rules as to how visitors or licensees use your property. Either way, I do know this: Facts are free. Getting facts usually costs money. NCAA schools are very big on money. Screaming journalists and bloggers should settle down and understand the law before they get on their high-and-mighties.