UW athletic director Scott Woodward was on Dave “Softy” Mahler’s radio show this morning and Softy began the interview by asking Woodward about the UW’s live coverage policy. The athletic director said he didn’t think it was a big story, pointing out that the school simply wants to protect its live media rights.

“We’re always going to protect live descriptions of events,” Woodward said. “That’s something that has always been our right for decades and continues to be so. As technology gets better and better, we’re going to have to be more vigilant about how we do it, but also understand that reporting has changed, too. There’s a fine line there and we’re always going to be cognizant and reasonable.”

Woodward continued, telling Softy that his own radio station pays a premium to broadcast UW games live and “we don’t want that diminished, nor do we anything else diminished whether it’s T.V. or live events.”

My conversation with a University of Washington departmental source on the issue of Twitter restrictions (specifically live-tweeting during games) was not only informative, but surprising. I came to find out that UW not only reserves a sort of “creative protection” right over their sporting events, but that the policy is actually of benefit to their fans. Further, in a surprising twist, it seems that UW’s Twitter restrictions policy constitutes a step forward in social engagement … not backwards, the way it seems on its face.

Sporting events put on by the University of Washington can be considered the school’s “creative property” in a way.

They’re paying for the promotion, the venue, all of it. From a business perspective, they’re taking the greatest investment risk regarding their events, and they’re gambling on your fan-ship of their sport teams. It’s not unreasonable to want (and deserve) some control over the accuracy of the flow of information.

In our view, the underlying basketball games do not fall within the subject matter of federal copyright protection because they do not constitute "original works of authorship" under 17 U.S.C. Section 102(a). Section 102(a) lists eight categories of "works of authorship" covered by the act, including such categories as "literary works," "musical works," and "dramatic works."[n3] The list does not include athletic events, and, although the list is concededly non-exclusive, such events are neither similar nor analogous to any of the listed categories.

Sports events are not "authored" in any common sense of the word. There is, of course, at least at the professional level, considerable preparation for a game. However, the preparation is as much an expression of hope or faith as a determination of what will actually happen. Unlike movies, plays, television programs, or operas, athletic events are competitive and have no underlying script. Preparation may even cause mistakes to succeed, like the broken play in football that gains yardage because the opposition could not expect it. Athletic events may also result in wholly unanticipated occurrences, the most notable recent event being in a championship baseball game in which interference with a fly ball caused an umpire to signal erroneously a home run.

[....] We believe that the lack of caselaw is attributable to a general understanding that athletic events were, and are, uncopyrightable. Indeed, prior to 1976, there was even doubt that broadcasts describing or depicting such events, which have a far stronger case for copyrightability than the events themselves, were entitled to copyright protection. Indeed, as described in the next subsection of this opinion, Congress found it necessary to extend such protection to recorded broadcasts of live events. The fact that Congress did not extend such protection to the events themselves confirms our view that the district court correctly held that appellants were not infringing a copyright in the NBA games.

An indispensable element of an INS "hot-news" claim is free-riding by a defendant on a plaintiff's product, enabling the defendant to produce a directly competitive product for less money because it has lower costs. SportsTrax is not such a product. The use of pagers to transmit real-time information about NBA games requires: (i) the collecting of facts about the games; (ii) the transmission of these facts on a network; (iii) the assembling of them by the particular service; and (iv) the transmission of them to pagers or an on-line computer site. Appellants are in no way free-riding on Gamestats. Motorola and STATS expend their own resources to collect purely factual information generated in NBA games to transmit to SportsTrax pagers. They have their own network and assemble and transmit data themselves.

To be sure, if appellants in the future were to collect facts from an enhanced Gamestats pager to retransmit them to SportsTrax pagers, that would constitute free-riding and might well cause Gamestats to be unprofitable because it had to bear costs to collect facts that SportsTrax did not. If the appropriation of facts from one pager to another pager service were allowed, transmission of current information on NBA games to pagers or similar devices would be substantially deterred because any potential transmitter would know that the first entrant would quickly encounter a lower cost competitor free-riding on the originator's transmissions.[n9]

However, that is not the case in the instant matter. SportsTrax and Gamestats are each bearing their own costs of collecting factual information on NBA games, and, if one produces a product that is cheaper or otherwise superior to the other, that producer will prevail in the marketplace. This is obviously not the situation against which INS was intended to prevent: the potential lack of any such product or service because of the anticipation of free-riding.

Lastly, UW doesn’t want its own social engagement trumped. Their social media directory is incredibly dense: Instead of shutting out the media, UW has already beaten them to the punch with regard to social, live coverage, in-game tweeting, etc. etc. ad nauseam. Further, their fans already know where to go to get these live updates and usually turn there first, making any credentialed media coverage kind of redundant in the end.

My source says that the university takes social very seriously, and implementing journalistic policy for Twitter like the kind that exists already for radio and TV is a sign that UW takes the power of social media as a journalistic tool incredibly seriously. From this perspective, the University of Washington is ahead of the curve, not behind.

The practice is relatively new and -- as such -- the court has not had the opportunity to consider any possible adverse implications. It is entirely at the discretion of individual judges how they conduct matters in their court room. We would, of course, be concerned if any device was used that disrupted proceedings.

Nevertheless, on what we know so far, the use of twitter does not seem to have caused any problems and maybe a useful way of informing the public very quickly about what is happening in a court room. The court itself -- through its e-services strategy -- supports the use of portable technology. New portable devices provide a range of functions -- in addition to being a phone -- and are increasingly used by many in the ordinary course of business because they are so efficient.