Blogger booted from press box; world does not end

KnoxNews, via Instapundit:

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 defendant’s use of the information constitutes free-riding on the plaintiff’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 Ass’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 York’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 York’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 York’s misappropriation law survived preemption and that the contested use of Motorola’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.

By Ron Coleman

LIKELIHOOD OF CONFUSION blog author Ron Coleman is a member of Dhillon Law Group in their New York City and Montclair, New Jersey offices. He is a graduate of Northwestern University School of Law and Princeton University.

3 thoughts on “Blogger booted from press box; world does not end”
  1. […] Sports Bloggers as Journalists? Late this semester, we will be learning about some sports journalism issues. In anticipation of that happy day, here is some preliminary reading from Ron Coleman’s Likelihood of Confusion(R) blog. (I highly recommend his blog in general, but this post in particular should be of interest for the class). […]

  2. Correct me if I go wrong here, oh Great IP Sage. Here is how I would see it.

    A performance is a copyrightable work.

    A sporting event is (arguably) a performance.

    A sporting event is therefore (arguably) a copyrightable work.

    The primary purpose of copyright and patent laws — both arguably infringements on free speech — is to allow producers a reasonable period to profit from a work, in hopes that this will encourage the creation of beneficial works. (Trademark law is also arguably an infringement on free speech, but with a different primary purpose as originally envisioned, if not so primary today: to protect consumers from the likelihood of confusion of one producer’s work with another’s.)

    A derivative work is a work which most likely would not have existed without the existence of the original copyrightable work. It is also a copyrightable work. Ownership of the copyright to the derivative work is best settled by agreement in advance; but when it’s not, ownership is jointly held by the creator of the original work and by the creator of the derivative work. Without an agreement, in practice this means that the work will likely be buried, since the creator of the original work can simply refuse to allow it to be reproduced anywhere.

    Mathematical formulae and data and statistics and simple facts are not and cannot be copyrightable works. Compendia such as telephone books that represent significant effort in gathering and organizing and presenting may come to be viewed as copyrightable works, but the data content within them cannot.

    Small samples of a copyrightable work may be reproduced for purposes of commentary or satire. This is the Fair Use doctrine, which is usually the first claim of defense for infringers who don’t really understand Fair Use. If the purpose of copyright is to encourage ideas and discussion, then the purpose of Fair Use is to encourage responses and counter arguments. Without Fair Use, copyright law would allow one to publish a ludicrous thesis and then prevent anyone from quoting the thesis in order to refute it. Fair Use is allows one to discuss a work, but not wholely replicate it.

    The presentation of a narrative of events — who did what when and to whom, how they reacted, etc. — is a copyrightable work. When the presentation is derived from another copyrightable work, it is (ipso facto) a derivative work.

    The blog retelling of a sporting competition, therefore, is rather clearly a derivative work, jointly owned by the blogger and by the sporting organization. Neither can reproduce or publish it without permission of the other. In this regard, blogging is no different from a theater deciding to put the Superbowl on a big screen and charge admission. In fact, the blogger is no different from a church deciding to put the Superbowl on a big screen and NOT charge admission, a practice which drew the ire of the NFL.

    Copyright law is not trademark law. A trademark holder is required to affirmatively defend any infringement of the mark, or risk losing claim to it. Once the trademark holder has let the public get confused, the damage is done. But with copyright law, the copyright holder may freely choose to ignore any derivative works and still object to others. In practice, this means they usually ignore individual violations (such as a Superbowl party for a small office) while pursuing “wholesale” violations (such as a Superbowl party for a large church).

    The sporting organizations have chosen to license some of their rights to their works as a means of generating profit. Since one attraction of sporting events is immediacy and unpredictability, they license live derivative works — i.e., broadcast rights — at a premium, with lucrative and very carefully crafted contracts for those licenses. Those licenses usually promise exclusivity for a price.

    A stats page in tomorrow’s paper doesn’t reduce the value of today’s live broadcast. A narrative retelling in tomorrow’s paper doesn’t reduce the value of today’s live broadcast. And even a “live” stats page in TODAY’S newspaper site doesn’t reduce the value of today’s live broadcast much, because the stats are cold numbers (and not copyrightable anyway).

    But a live blog feed of today’s performance as it happens has potential to reduce the value of today’s live broadcast. If that blog feed is on a popular site or a widely promoted newspaper site, the reduction in value may be significant. And furthermore, the broadcast rights contract may very well require the sporting organization to pursue and punish such value-reducing “broadcasts”. Not being privy to the contract details, I can only assume that those contracts ignore such small-scale and ultimately unenforceable violations as cell phones and text messages; but I’ll bet the contracts explicitly preclude any live derivative works from other media outlets.

    In other words, I suspect the NCAA may have had no choice here. And certainly they were within their rights here. Whether they were smart (given that enforcement will soon become impractical) is a separate matter.

  3. […] He’s stunned because, ironically, he forgot — despite making this film — that universities are big business, and are among the biggest IP pigs around. Okay, I can’t deny that the original Indoctrinate U logo is probably confusingly similar to the Hoosier’s symbol — but there’s been no harm, no foul (i.e., no damages and presumably no evidence of bad faith infringement). I’ve pushed back on these shakedowns before and seen institutions with “IP programs” that depend on a positive cash flow back off on the money demand. Perhaps a little negative publicity would help that happen here. […]

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