The stories of how YouTube has lowered the barrier for entry into the entertainment business are becoming common enough that they're no longer the shock they once were. Justin Bieber got himself noticed on YouTube, of course. Add to his story that of Rebecca Black and Gangnam Style and we begin to see YouTube as a steady platform for musical stardom. While there are certainly examples of movie magic happening on YouTube as well, this has long been the realm of music and weird memes.

That's what makes the story of Norwegian futbol player Havard Rugland so much fun, now that his YouTube kicking video has gone viral and led to a tryout with the New York Jets football squad. The video itself is insane, nearly as insane as Rugland potentially becoming an NFL kicker when he doesn't know a thing about the game.

The events leading to an NFL tryout from that video began when Rugland's futbol team disbanded. He had a booming leg, but now he had to figure out what to do with it. Apparently the Rockettes weren't hiring, because Rugland turned instead to videos of NFL kickers, studying how they performed their craft.

Using tools not typically associated with athletic prowess — YouTube, Facebook, Skype and Gmail — Rugland parlayed a homemade video that went viral into a tryout as a kicker with the Jets last week. He might be the first professional prospect to replace college football experience with social media savvy. In the four-minute video, posted on YouTube in mid-September under the title “Kickalicious,” the left-footed Rugland pulls off some of the most amusing tricks with a football since Lucy began duping Charlie Brown. It has been viewed more than 1.5 million times.

If you took the time to watch the video above and have managed to put your jaw back in place, all you really need to know about it is that the video has been independently verified as real and un-doctored. After the video went viral, a former NFL kicker in the States found it and connected with Rugland via Facebook. From there it was a simple matter of networking before Rugland was working out with American coaches. Soon after, the New York Jets came calling.

[Jets Assistant General Manager Scott] Cohen was reluctant to give details about last week’s workout but said the Jets saw enough to conclude that Rugland had a chance to play in the N.F.L. Rugland said the Jets wanted him to return for a workout in March. He added that he planned to spend the next few months in Norway practicing field goals and kickoffs (he is leaving the trick shots behind).

Rugland has also hired an agent, Jill McBride Baxter. After Rugland’s tryout with the Jets, Baxter said, the Oakland Raiders, the Green Bay Packers and the Philadelphia Eagles expressed interest in him.

He'll have to impress in March, but Rugland looks to have a good shot at becoming the first NFL football player resulting from a viral YouTube video.

EA Games has agreed to a $27 million settlement for charges of price-fixing related to its NFL, NCAA and (lawl) Arena Football League games. While this may come as somewhat a relief to purchasers of EA games, it's highly unlikely that this will result in EA changing its core strategy. It certainly doesn't seem to have had any affect on EA's exclusive license with the NFL (which continues through 2013), a deal that was the impetus for this lawsuit.

First off, the settlement sounds super-big, but in reality, it breaks down to couch change for those people who were "fortunate" enough to make a "recent" purchase of one of the named EA Sports titles.

Those who bought games for a PlayStation 2, original Xbox or Nintendo GameCube could receive up to $6.79 per title. Games purchased for the PlayStation 3, Xbox 360 and Nintendo Wii will garner a $1.95 refund, reports USA Today.

The named platforms call to question the term "recent," which is used in the original USA Today article on the subject.

In a statement, law firm Hagens Berman says EA will create a $27 million fund for players who purchased a recent copy of any Madden NFL, NCAA Football or Arena Football title.

The larger payout for older platforms is likely due to the event that led to EA locking down an exclusive deal to publish Madden Roster Update as the sole representative of the National Football League.

Way back in 2004, 2K Sports released ESPN NFL 2K5 at the extremely friendly price point of $19.99, or under half the price of EA's game, which debuted at the normal $50. Not only did it beat Madden in the price war (and force EA to drop Madden's price to $29.99), but in many critics' estimation, it was a superior game, especially in terms of presentation.

EA felt threatened by this move and responded the way any corporation that would go on to hold the title of "Worst Company in America" would: by throwing its considerable weight around and locking down an exclusive deal with the NFL. No doubt the NFL was also worried, having momentarily been associated with a budget-priced game. Hence, nothing but Madden until 2013 and this lawsuit, which was filed in 2010.

The NFL's vice president of consumer products, Gene Goldberg, said at the time that he wasn't concerned that EA's monopoly would result in stagnation, stating that there is "a lot of self-imposed pressure to make [Madden] stand out in a robust and diverse marketplace." Maybe so, but I would imagine that EA's flagship football game would have improved much more dramatically with a high-quality competitor constantly breathing down its (overpriced) neck. 2K Sports' product was so far ahead of Madden at the time that gamers still find it to be a better experience than Madden 11.

This isn't EA's only NFL-related lawsuit, either. U.S. District Judge Richard Seeborg just gave the go-ahead for former NFL players to seek class-action status in their lawsuit against EA for using their likenesses in Madden NFL games. EA had hoped to avoid this sort of situation by stripping names and shuffling jersey numbers, but the retired players pointed out that their digital alter egos were accurate in terms of skills and physical appearance.

EA played the "stats are facts" card, quoting an earlier decision that saw Major League Baseball being told that player names and statistics are facts, and therefore cannot be copyrighted. Seeborg's ruling dismissed this claim, stating that current publicity rights laws and pointing out that Madden games show the retired players "in their conventional role as football players" and is the "digital equivalent" of "using the players' pictures to sell T-shirts." 

Speaking of "couch change," the proposed settlement pales in comparison to the damages originally sought in the price-fixing lawsuit, which alleged that without the exclusive NFL deal, Madden would have been forced to price its games at a more reasonable $29.99, rather than the $50-60 we're all kind of tired of paying. This difference resulted in gamers paying an extra $701-926 million for EA sports games between 2005 and 2010.

But $27 million it is. Gamers shouldn't start counting that incoming couch change just yet though. This settlement still needs to be approved by the court, a move which could take months. While this might be of some consolation to the gamers who filed the suit, it feels more like a gesture of hands-folded-politely compliance, as if to show that EA is a "Good Corporate Citizen" and, as such, is worthy of its continued NFL-granted monopoly. And despite its exclusive client currently "entertaining" two lawsuits, the NFL doesn't seem to be interested in shopping around for new suitors, leading one to believe that it really doesn't care much for non-exclusive deals... or for its former players.

For years, fans of college football have been clamoring for some sort of playoff system, rather than the messy rankings and bowl system that currently exists. It's a topic that people can get pretty passionate about. Even President Obama has weighed in on the subject arguing for a playoff system. I'm not a college football fan, so I don't really care one way or the other what happens, but there is a little tidbit in the latest discussion that I find interesting. Jarrett Streebin alerts us to the news that Mark Cuban is pushing hard to create a college football playoff system, which normally wouldn't be of that much interest to folks around here, except in Cuban's blog post about the topic, he posts an anonymous email from someone who claims to hold a patent on a football playoff system. Here's an excerpt from the email that Cuban posted:

My advise is, don't waste your money. There are three perfected alternatives to the BCS. I own one, a guy with CBS owns another and a guy in Arizona owns the third. By that, I don't mean the screw-ball ideas you see on the internet, but actual branded properties.

[... a bunch of stuff skipped, some by me, and some by Cuban ...]

You should also consider that the playoffs are already owned by someone, as in, the patent for resolving the FBS championship by way of a playoff was issued long ago. It's called a method patent, so be careful not to infringe it.

Anyway, if you want to know who owns assets in this field, let me know. I can put you in touch with one of my attorneys who can let you know what you're in for. It's much more complex that it's commonly understood to be.

Ownership of a sporting playoff system? Seriously, USPTO? Cuban uses this as an opportunity to point out the ridiculousness of patents and how they're abused by people "who have no intention of solving a problem or building a business but want to get paid by those that do." It's a nice little rant, but no different than what you've probably read here on Techdirt a hundred times.

What interested me was this idea that the concept of college football playoffs could be patented. It looks like, from the email, that the guy did not reveal the patent. If anyone knows what it is, please share. I went looking myself, and have found two possibilities -- one an issued patent, and another that's still in the application stage.

The issued patent (6,053,823 -- full patent embedded below) is held by Marc Mathews and was issued in 2000. The patent indicates that Mathews lives in Arizona, so he's likely to be "the third guy" mentioned above. The patent application (application #11/327,584 -- full application embedded below) was filed by three guys: Edward Baxter Williams, Tyler James Williams and Edgar Richard Williams Jr., all from New Hampshire. Perhaps one of them emailed Cuban. That patent application is especially odd, as it looks as though the "abstract" is for something entirely different. The application is supposedly for "a flex schedule playoff system" and the claims definitely discuss that -- but the abstract appears to be for "a protective fender is provided for use on a pontoon boat." Not quite who screwed up there, but someone clearly did.

Either way, if you wanted to see how one might go around patenting the concept of a football playoff system, go ahead and dig into the patents. I'm just going to sit back and wonder what the USPTO was thinking when it approved that first one.

cc alerts us to a very interesting legal case in Europe that's now going before the European Court of Justice. It involves a UK pub, which thought the rates that satellite TV provider Sky Sports was offering for Premier League football were ridiculously high -- and instead went and got a satellite card from a Greek satellite TV provider who offered Premier League matches for about 1/10th the cost. The Premier League, who is notorious for over-aggressively trying to limit people from watching the games except through (expensive) approved methods sued. The pub is arguing that this is a restraint on basic free trade principles:

"If I wanted to go and buy a car, I could go to any garage I like. Me, as a publican, if I want to show football, I can only go to the Sky garage, and have to pay ten times the price of anybody else [in Europe]. I don't believe that's fair."

Murphy's case rests on her freedom to trade, as she argues that restricting her choice of satellite TV provider to just Sky contravenes the principles of free movement of goods and services between countries in the EU.

This could be a huge deal if she wins. Currently, in Europe, each country has entirely different licensing schemes and systems for all sorts of content, creating something of a mess at times. There's long been an effort underway to create pan-European licensing, and a ruling in favor of the pub owner here might take at least some aspects of the content market to a point where there's now a de facto open market across borders. Copyright holders will scream bloody murder if this happens, but they also screamed bloody murder when the VCR was introduced, so sometimes it's a bit difficult to take them seriously on such things.

The theory behind copyright, of course, is that such government-granted monopolies are necessary to encourage innovation in a market. The idea is that, without such protectionism, no one would bother innovating, because they'd know that others would immediately copy them. This was based on theory, however, and tragically, many people have continued to assume this theory must absolutely be true. As we've noted in the past, it's this odd "faith-based" approach to copyright law. That's a problem, because every bit of evidence suggests this theory is simply not true. Every time we look at creative industries where there is no or little copyright protection, we seem to find an awful lot of innovation and creativity, where the theory would suggest it doesn't make sense for that to happen. In fact, when we've compared industries across countries where one country has copyright protection and the other does not, those without copyright tend to be bigger, more innovative and more creative.

In the past, we've looked at how the fashion industry, the restaurant industry, the stand-up comedy industry, and even the magician industry all seem to be incredibly creative and thrive without copyright protection. Now, Kal Raustiala and Chris Sprigman, who have been studying this same topic for a long, long time, are highlighting the same thing in an area you might not have considered: football plays. Yes, football plays -- which are not copyrightable. As they note, American football has been filled with creative innovation when it comes to new plays. And, while the faith-based "theory" of copyright suggests that no team would innovate because others would just copy them, reality has shown quite the opposite. Raustiala and Sprigman go through a series of innovations, from the forward pass, to the "west coast offense" to the "zone blitz" to the "no huddle offense" to the "spread offense." Each were massive innovations that effectively changed the game.

As they note, each time there was a new innovation, it was met with "contempt," as others accused teams of "cheating." And, yet, over time, each of these innovations spread across the league, as teams copied them and continue to innovate as well. They point out that someone even did try to copyright a football formation once (comparing it to dance choreography -- which is copyrightable). Raustiala and Sprigman point out that, despite the fact that such plays aren't copyrightable, there's still so much innovation. One key point they make, is that this is an area where a first mover advantage is quite important. Of course, that applies in many other industries today as well.

Towards the end, they make a key point about economic theory, that's absolutely worth sharing:

Finally, the story of innovation in football is tied to a much deeper debate in the economics of innovation. Economists today disagree about the conditions most conducive to innovation. Some, following the ideas of Joseph Schumpeter, maintain that innovation requires shelter from competition -- the firm in a competitive market is hard-pressed to focus on anything but the short-term, and because profits are limited by competition, may lack the resources to innovate. Other scholars, following the lead of Nobel laureate Kenneth Arrow, argue that innovation is best fostered by sharp competition -- firms struggling for any advantage over their rivals are forced to innovate or die. This divergence in views has hardened into a Schumpeterian vs. Arrovian standoff -- and the state of the evidence does not allow us to fully understand yet which view is right.

Intellectual property law, however, is essentially Schumpeterian. The theory of patent and copyright is that by sheltering innovators from competition -- that is, by prohibiting copying of the innovation -- we encourage innovation. But perhaps the Arrovians are right. Football, for example, illustrates innovation occurring in the midst of cut-throat competition. And football doesn't stand alone. Some of the other creative industries we've described, such as fashion and food, look like Arrovian innovators as well.

This is a perfect summary of many of the debates around here (and reminds me why I've never been a fan of Schumpeter and keep one of Arrow's texts on the economics of information on my desk at all times). It also explains why I have so much trouble with today's intellectual property law. It completely assumes a Schumpeterian view on the world, when a significant amount of evidence suggests Arrow's view is the correct one. The one point where I disagree with the statement is the idea that the evidence is not compelling enough in one direction. The more you look, the more it seems to suggest that Arrow is absolutely right on this one, and Schumpeter is -- as with many of his insights -- compelling and thought-provoking, but slightly off in the all important details.

Danny alerts us to the story of how sporting goods maker Riddell was able to drive competitor Schutt Sports into bankruptcy thanks to patent lawsuits. Riddell first sued Schutt for patent infringement on its football helmet design, winning a $29 million jury award. Right afterwards, it sued Schutt again, this time for shoulder pad design. A week later, Schutt declared bankruptcy. Now I'm sure, some will be quick to claim that this is exactly what the patent system is designed to do, but it does seem pretty troubling that, especially when it comes to safety issues, we're allowing one company to have a total monopoly on a type of safety gear. What's wrong with actually competing in the market?

We've covered a few different recent stories of various sports leagues or professional sports teams trying to limit how journalists and photographers can report on their games, and have even covered cheeky attempts to get around such restrictions by having reporters cover events from home while watching on TV. Now, a whole bunch of you have been sending in variations on a story in the UK, where the Southampton football team apparently has decided to ban photojournalists from taking images of matches, instead telling newspapers they need to buy photos from the team's "official" photographer.

Thankfully, some of the newspapers covering the latest match felt that was ridiculous, and chose to respond in some rather creative ways. The Plymouth Herald, who was covering the visiting team, decided to employ someone to draw cartoons of key moments in the match, rather than using the official photographs:

Perhaps even more amusing? Some reports point out that The Sun covered the game by carefully making sure to never mention Southampton or any of its players. Well played.

It seems like every year there's some sort of controversy over trademarks and the Superbowl. Of course, the NFL has been famous for aggressively defending trademarks. For example, it's been so aggressive in claiming that no one other than official sponsors can even mention the word Superbowl (even though it should be legal if used descriptively and accurately), that when many advertisers started switching to the euphemism "The Big Game," the NFL tried to trademark that too, even though it wasn't even the one who had come up with the phrase. This year, apparently, the big issue is over who owns the phrase "Who Dat" which is apparently a catch-phrase associated with the Superbowl- Big Game- Final Sporting Event Of The Football Season-bound New Orleans Saints. The NFL apparently claims that it holds the trademark on the phrase and is threatening some retailers who were offering "Who Dat" merchandise. Only problem? There's a company called WhoDat Inc., and it claims to own the trademark. a-dub points us to an interview with the brothers who own WhoDat Inc., who also recorded the Who Dat song back in the 1980s. It appears the issue, from the NFL, may be with the use of a fluer de lis with the phrase, since the NFL owns the trademark on the fleur de lis in association with the Saints. But the WhoDat folks say even there the NFL is overstepping its bounds:

"Sure, a fleur de lis can belong to the Saints, but in very specific usage, and everybody knows what that is," Monistere explained. "If you go back to 1967, to date, they have registered and used the fleur de lis in a very specific way. They put it on the Saints helmet and on the Saints 'shield.' Its colors are very specific -- they're 'old gold and black.' But for the NFL to expand that definition and say that no matter what color and what style of fleur de lis, if you put it on an item, it means Saints, it is, as many believe, is just not correct. The fleur de lis belongs to everyone including the people of New Orleans.

The Monistere brothers seem particularly annoyed by the NFL bullying small t-shirt makers, saying that they're more than happy to grant licenses to those folks to produce Who Dat merchandise, and merchants have said that the NFL communication has been tremendously threatening and aggressive, while the Monistere's have been quite friendly and accommodating. In fact, the Monistere's seem particularly annoyed that the NFL is bullying small shop owners like Fleurty Girl, who received a cease-and-desist:

"Here we are going to the Superbowl for the first time in 43 years and these NFL guys are here harassing the local small businesses," Monistere said. "Their merchandise sales are well over $320 BILLION a year! The NFL has become an intellectual property company. They make money selling their logos and image. With that kind of money coming in, they focus their attention on Fleurty Girl? I don't have a problem with them protecting their intellectual property, but when they do it to the extent of trying to intimidate people into believing that the Fleur de lis is theirs -- well, that's just a bullying technique."

As for the New Orleans Saints themselves? The organization there has apparently publicly said that WhoDat holds the rights on the trademark.

We were recently discussing how the idea of "officially licensed" gear for professional sports teams is a relatively new phenomenon. In the past, anyone could produce gear for fans. However, there's a Supreme Court case looking at this issue, involving the NFL's exclusive license deal with Reebok, and reader Fitz points us to a quite well argued op-ed by New Orleans Saints quarterback Drew Brees explaining the harm that such exclusive deals do, noting that it seems like a clear violation of antitrust rules, in that all of the different NFL teams are effectively teaming up to exclude competition:

The NFL originally won the case because the lower courts decided that, when it comes to marketing hats and gear, the 32 teams in the league act like one big company, a "single entity," and such an entity can't illegally conspire with itself to restrain trade. The NFL-Reebok deal is worth a lot of money, and fans pay for it: If you want to show support for your team by buying an official hat, it now costs $10 more than before the exclusive arrangement.

Amazingly, after the NFL won the case, it asked the Supreme Court to dramatically expand the ruling and determine that the teams act as a single entity not only for marketing hats and gear, but for pretty much everything the league does. It was an odd request -- as if I asked an official to review an 80-yard pass of mine that had already been ruled a touchdown. The notion that the teams function as a single entity is absurd; the 32 organizations composing the NFL and the business people who run them compete with unrelenting intensity for players, coaches and, most of all, the loyalty of fans.

Brees rips apart that argument by noting the competition he, himself, faced as a free agent -- a right that players only got after a series of court battles. This isn't a huge surprise. Like plenty of other businesses, sports leagues have a keen understanding of what monopoly rents are, and do everything possible to profit from them.

We've discussed in the past how the UK's Premier League's fear of the internet has been a case study in what not to do online. But it seems that the Premier League bosses still want to push forward with plans to make it more difficult and more annoying for fans to actually watch matches. Jeff T alerts us to an opinion piece in The Guardian from the CEO of the Premier League, Richard Scudamore, in support of Lord Mandelson's Digital Economy Bill for kicking accused (not convicted) file sharers off the internet. It's the usual rant against "piracy" without much basis or knowledge:

Without the safe passage of the bill -- requiring ISPs to take firm measures against unauthorised filesharers who are currently streaming and downloading with virtual impunity -- the marker that this is theft isn't even set down, educating consumers cannot begin in earnest, businesses cannot begin to develop new models because the market won't be functioning properly and, most importantly of all, the current levels of investment that create jobs as well as talent will be lost. And that is when the real cost of digital theft would become apparent.

And yet, even as he writes those words, the creative industries that he insists are dying have been growing. How? Because the business models have been adapting just fine -- even without additional artificial barriers to competition or the ability to kick people off the internet. And, in the case of the Premier League, Scudamore seems to be leaving out an awful lot of important facts, such as how incredibly limited an online offering the Premier League has put forth, which is a large part of the reason why lots of people stream it illegally. He also tosses out some totally made up "facts" such as "the UK leads the world in illegal downloads of TV programmes, with up to 25% of all online TV piracy taking place here." Well, perhaps it's not totally made up since he uses the magic words "up to." But if there is a problem with file sharing of TV shows in the UK, it's likely (as Jeff noted in his submission) because the "creative industries" that Scudamore insists are so important still delay the release of popular shows in the UK and demand that online streaming sites like Hulu not work outside the US.

Piracy is not the problem. Piracy is only showing folks like Scudamore that they're doing a terrible job in meeting demand. He doesn't need people kicked off the internet to adjust his business model. Lots of others are already doing so.