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.

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