MLB Refuses To Give Permission To Guy To Describe Game To A Friend

from the expressed-written-permission dept

A couple years ago, law professor Wendy Seltzer used the NFL as an example of sports leagues performing copyfraud, by claiming copyright control beyond what is allowed by law. Specifically, she was talking about the warning mentioned at some point during every game. For the NFL it was: “This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or of any pictures, descriptions, or accounts of the game without the NFL’s consent, is prohibited.” In Seltzer’s case, amazingly, the NFL sent a DMCA takedown of her posting that clip to YouTube — giving her another “teachable moment” on copyright abuse.

And yet, sports leagues still continue the copyfraud. One of the fine folks over at Consumerist, Phil Villarreal, found the wording of Major League Baseball’s warning quite questionable:

“Any rebroadcast, retransmission, or account of this game, without the express written consent of Major League Baseball, is prohibited,”

Unlike the NFL one, at least it didn’t say “descriptions,” but “account” is pretty close. So, Villarreal contacted MLB to request “express written consent” to provide an “account” of the game he had watched to a friend. To its credit, MLB responded and asked him to call someone in its business development department… who (perhaps reasonably) thought it was a joke and did not provide the written consent (and stopped responding to calls and emails).

Now, obviously, this is a bit of a joke (and a funny one), but it does highlight a rather serious problem. Copyright holders are pretty regularly claiming significantly more rights than they actually hold over content, and many people simply assume that they can do this. This leads to them to think that they don’t have basic rights concerning not just “fair use” but stuff that is obviously not covered by copyright, such as an “account of this game.” There really should be sanctions against such copyfraud.

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Companies: mlb.com

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Comments on “MLB Refuses To Give Permission To Guy To Describe Game To A Friend”

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75 Comments
David says:

Re: Re:

I use to be a big time baseball fan. A decided a couple of years ago to never watch another baseball game, and so far except for high school baseball. Ihave not watched a single second. I watch Euro football and horse racing. I am sick of all the abuse and lack of care they give the fans. I also no longer buy dvd or music either. LOL

Matt (profile) says:

Re: Wrongs

Perhaps there are, although I’ve never heard of it being tested. If a company uses deceptive practices in order to sell a good or service, it may be actionable under some state’s “Little FTC Act,” often called a “Consumer Protection and Unfair Trade Practices Act.” These are state codifications of the federal FTC Act and Lanham Act, but unlike those acts they often provide fairly substantial private remedies.

In other words, if your state is on its game you can sue companies that lie in order to convince you to buy things. Like accounts of football games.

Anonymous Coward says:

Ms. Seltzer, a Berkman and EFF booster, seems to be having fun playing a silly game of wordsmithing to make a silly point of dubious merit. She comes across as little more than a First Amendment absolutist, a not altogether surprising position for one whose view of the world is limited to the halls of academia.

Her feeble attempt at making her point by means of a reductio ad absurdum argument is particularly unenlightening and childish.

Griff (profile) says:

Re: Ms. Seltzer is not just making a silly point

This may be a joke but there is a serious line somewhere.

The MLB presumably would say it is OK to describe the game in a bar afterwards, may be OK to text a friend during a game with a real time description, and is almost certainly not OK to tweet a real time description, or to post a blow by blow account on a website.

However, I was under the impression that facts cannot be copyrighted. Do they have any legal redress against someone who sticks to the facts in an account of the game ?

pjhenry1216 (profile) says:

Re: Re:

you try to use big words, but none of them back up your position. there’s absolutely nothing wrong with using reductio ad absurdum as a formal argument. your entire post is laced with opinion, but absolutely no reasoning behind it. its as if you want everyone to overlook the lack of actual content by justifying all that money you spent on an english degree.

Anonymous Coward says:

Re: Re: Re:

You may be interested to know I went back and read this article and realized I was mistaken. Ms. Seltzer was not the one who engaged in what I called a silly game. It was another person by the name of Phil Villarreal.

Thus, I erred by referring to Ms. Seltzer when I should have crafted my comment responding to what Mr. Villarreal had done. He assumed a definition for a word without so stating, and then used a form of argument predicated on his unstated assumption.

It was fun, however, to see someone use the word “cooties”. I did not realize it was still a part of our vocabulary.

Merely FYI, I did not spend any money on an english degree. My bachelor and masters programs in aero engineering were paid for by the DOD, my flight instruction program by the DOD, and my law program by the VA.

Anonymous Coward says:

Re: Re:

Yawn, using latin lawyer phrases like “reductio ad absurdum” Is unenlightening.
The fact is that repetitive brainwashing is a real phenomenon. So by seeing/hearing that such and such is prohibited/illegal etc. it becomes an automatic reaction that it is wrong. When people think things are wrong, then they tend to get made into laws. Keeping that in mind, the fact you are using a legal term means your either attempting to look smart, in law school or a lawyer yourself. It’s no wonder you would try to convince people this is frivolous.

Anonymous Coward says:

Re: Re: Re: Re:"reductio ad absurdum"

You are, of course, correct. It has a specific meaning in math, but its use in legal arguments is typically for a different purpose. In law it is generally used to take a statute and then read it in such a way that it leads to situations having what may be viewed as absurd results. Of course, in legal proceedings this seldom works since such situations are virtually never before the court.

Thomas (profile) says:

No sanctions.

There will be no sanctions for copyfraud because the providers (NFL, **AS, all sports leagues) have the courts and government bodies in their pockets. It is a simple matter of money – pay the gov’t enough protection money and you get whatever laws and legal rulings you want. The government is owned by big business, so taxpayers get screwed.

Howard West says:

MLB copyright disclaimer

I generally like what I read on this site, but I don’t quite get the point of this one. That MLB copyright disclaimer sounds word for word, with the exception of the specific reference to MLB, like the one I’ve been hearing during every Chicago Cubs game I’ve listened to or watched for the last 40 years. Why only now are we getting excited about it?

Richard says:

“Copyright holders are pretty regularly claiming significantly more rights than they actually hold over content, “

Actually the sports league, clubs etc are NOT copyright holders. Copyright only enters into the equation when the content is “fixed in a tangible form”. The broadcasters hold copyright over their output but there is no copyright in the original live event (unless of course they are admitting by this statement that the games are choreographed in advance – like wrestling!).

If you live in a tall building overlooking the stadium you can stream live video of the event if you want and there is nothing they can do other than erect a physical barrier.

Richard says:

Re: Re: Re:

“The point is that even if they would lose a lawsuit no one wants to be faced with the potential of being sued.”

What could they do? There isn’t even a law under which they could bring a case. They can write threatening letters but that’s about as far as it goes.

To claim copyright they would have to concede that the match is predefined – i.e. fixed – wouldn’t it be wonderful to raise this issue in a court!

Doctor Strange says:

Re: Re: Re: Re:

What could they do? There isn’t even a law under which they could bring a case.

Additionally, one of the “features” of the U.S. legal system is that you can sue just about anybody for anything. This isn’t particularly enabled by or specific to copyright law. My crazy neighbor could sue me for sending evil radio waves into his house. If he got a crazy lawyer, he could really soak up my time. All of us live under the “threat” of lawsuits all the time, but I doubt it keeps most of us up nights. Advocating anti-SLAPP provisions in your state would be a good way to help control for this.

Richard says:

Re: Re: Re:2 Re:

“you can sue just about anybody for anything”

Surely there has to be a law first. You can’t sue your neighbour for (say) “wearing green socks in the afternoon” just because you think that there ought to be a law against it.

The only law they could try to use is copyright law – but to do that they would have to lay themselves open to allegations of match fixing.

ChurchHatesTucker (profile) says:

Re: Re: Re:3 Re:

“Surely there has to be a law first. You can’t sue your neighbour for (say) “wearing green socks in the afternoon””

Technically, you can. You probably won’t get far, but there you go.

The problem here is that there is a law. Now, the question would be “does it apply to this situation?” And settling questions like that is what courts do. The fact that it keeps lawyers employed is merely a side benefit. Pay no attention to the lawyers drafting the laws.

Richard says:

Re: Re: Re:4 Re:

Interestingly an example has just arisen that is quite close to the situation we arediscussing.

The Michael Jackson funeral was filmed from a helicopter and the family didn’t start a lawsuit or even threaten one all they could do was to ask the news organisations to stop using the footage.

This would suggest that they knew there wasn’t a case that they could bring.

Jay (user link) says:

Re: Re: Re:3 green socks in the afternoon

Technically, if he is going to sue you he needs a tort, not a law. A tort is something you can be sued for. A law is something you can be arrested for. But anyway …

The problem with your comment is that it assumes that laws are self-enforcing. Anyone could go to the courthouse and fill out the paperwork to bring a lawuit against you for wearing green socks in the afternoon. You would then be required to respond. Unless the judge is more insane than usual, I assume the case would be dismissed pretty quickly. But there’s nothing magic about the paper that courthouses use that prevents people from writing absurd things on the form. A judge has to read it and declare that it is absurd. The courthouse staff can’t do that. Indeed, would you really want a clerk who was hired yesterday to have the authority to dismiss a case without ever showing it to the judge, based on his belief that the complaint is absurd? Sure, in cases like this that might be a good. But who would decide when the clerk is going too far? It would have to be the judge. And how can he decide that if the clerk decides cases without the judge ever seeing them?

Plenty of cases have gone to court that sound pretty absurd to me. Remember that lady who spilled coffee on her lap and then sued McDonald’s for making it too hot? Not only did the court listen to her case, but she actually won. I’ve seen numerous cases of burglars who sued homeowners because the burglar fell and hurt himself while robbing their home. Etc etc

Steve R. (profile) says:

Re: Corporatism - Corporations Making "Law".

Implicit in the statement: “Any rebroadcast, retransmission, or account of this game, without the express written consent of Major League Baseball, is prohibited,” is that they are making an assertion that have the right to create a “law” that you must abide by. Just because a company asserts that an activity is somehow “illegal” does NOT make it illegal.

Unilateral “contracts” should be declared unenforceable.

Doctor Strange says:

There really should be sanctions against such copyfraud.

Section 506(c) of U.S. Copyright Law:

(c) Fraudulent Copyright Notice. โ€” Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.

Section 506(e) of U.S. Copyright Law:

(e) False Representation. โ€” Any person who knowingly makes a false representation of a material fact in the application for copyright registration provided for by section 409, or in any written statement filed in connection with the application, shall be fined not more than $2,500.

Section 512(f) of U.S. Copyright Law, referring to misrepresentation in sending out DMCA takedown notices:

(f) Misrepresentations. – Any person who knowingly materially misrepresents under this section โ€”

(1) that material or activity is infringing, or

(2) that material or activity was removed or disabled by mistake or misidentification,

shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

Anonymous Coward says:

Re: Re:

“(c) Fraudulent Copyright Notice. โ€” Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.”

Great, now we just need a criminal justice system that enforces this law. Who is supposed to enforce this, who do we tell when someone breaks this law?

Anonymous Coward says:

Re: Re:

“(e) False Representation. โ€” Any person who knowingly makes a false representation of a material fact in the application for copyright registration provided for by section 409, or in any written statement filed in connection with the application, shall be fined not more than $2,500.”

So how does one prove intent, that the entity knew better? It can simply deny that it knew better.

Anonymous Coward says:

Re: Re:

“shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.”

Ok, now give me instances where this was enforced.

Anonymous Coward says:

Re: Re:

also, it says the fines are not more than $2,500, which really isn’t that much and if the costs are less than $2,500 then they will be fined less than that amount. Basically this is simply compensatory damages of no more than $2,500, hardly a punishment and is certainly not punitive damages. Compare this to how much one can be rewarded for copyright infringement there is clearly a huge disparity. Also, what about opportunity cost. During the time that someone has to fight for copyright infringement that means they can’t work since they’re in court, do they get lost wages and any other damages it may cause to their job (ie: future damages because their boss got mad at them or limited their future actions regarding how much time they can take off or it reduces their chances of a future promotion since it takes time away from their productivity and job experience. It can also break their thought process from work and things are always changing meaning by the time they get back to work they have to spend more time updating themselves on current issues regarding their job which can cut into their commission and productivity)? What about if it’s someone who gets paid by commission, they can lose clients during that time which could cause current and future damages. $2,300 in compensatory damages is a joke (far huger rewards are rewarded for intellectual property infringement, the laws are ENTIRELY one sided, it’s completely not fair), no one wants to fight a false copyright infringement case if there is only a potential that they might get compensatory damages (they might not get compensatory damages because in order to get compensatory damages they must prove fraudulent intent), they might as well be at work.

Anonymous Coward says:

Re: Re:

Simply put, up to $2,500 in potential compensatory damages only if one can prove intent is not even close to enough, I want to see far huger punitive damages and I want to see not just the word “intent” I would to see the words “known or SHOULD HAVE KNOWN” written into that law (the law should read something like, “if I sue you for copyright infringement and I knew or SHOULD HAVE KNOWN that my claim was bogus, I can be fined up to $100,000 in punitive damages” (in terms of real GDP)). The fact that one can get fined far more for intellectual property infringement is telling regarding how entirely one sided the laws are.

Anonymous Coward says:

Re: Re:

Also note, someone else already addressed this issue here.

http://www.techdirt.com/article.php?sid=20090626%2F1421065375&threaded=true&sp=1#comments

Read post Jun 27th, 2009 @ 12:53pm

Here, I’ll even re – copy and paste their response here since it’s really nice.

___________________________________________

“US Copyright Act
506(c): “Fraudulent Copyright Notice. โ€” Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words…”

Note that that only applies to fraudulent claims that are actually attached to an article, not false claims in general or unfounded threats of legal action.

“…that such person knows to be false,…”

That’s the big loophole that they use. You have to prove that they actually “knew”, but all they have to claim in defense is ignorance. This is one of those cases where claimed “ignorance” really is an excuse under the law.

Oh, and “ignorance” is no defense against charges of infringement. That defense only works one way.

“shall be fined not more than $2,500”

Hey, that’s funny considering the (US) penalty for infringing a copyright can be up to, what, five years in prison and a $250,000 fine? Seems to me that there needs to be a little parity there.

_________________________

Just shows how one sided the laws are.

Anonymous Coward says:

Re: Re: Re:

“Any person who, with fraudulent intent … shall be fined not more than $2,500”

“Hey, that’s funny considering the (US) penalty for infringing a copyright can be up to, what, five years in prison and a $250,000 fine?”

Think of the audacity of these laws. We, as a society, value protecting against copyright infringement substantially more than we value protecting against fraud. IT SHOULD BE THE OTHER WAY AROUND. What kinda nonsense is this.

dean.collins (profile) says:

NFL legal issues

We’ve looked into this issue from a legal point of view because of our application http://www.LiveFootballChat.com (it’s the same as our other application http://www.LiveBaseballChat.com).

Because of the indepth live interaction with other fans we could fall into this ‘play by play’ category but to be honest is this any different from two friends talking over the phone – what is the NFL going to do, sue AT&T?

At the end of the day i hope http://www.LiveFootballChat.com doesn’t get sued but this isn’t going to stop us from building a live platform that already interacts with Twitter and Facebook.

Cheers,
Dean

Dave Zanko says:

Re:

Actually, as part of the broadcasting contract, the broadcaster assigns their copyright to the game to the team/league in question (depending on wether it’s a local or national broadcast deal). So the leagues are copyright holders.

That said, all they hold copyright over is the recording of the broadcast. The do not and cannot hold copyright over a basic description of the game itself, despite the overly broad wording of the copyright notices used. The fact that they have never actually gone after someone for such a basic description tells me they know that these broad claims would never hold up in court.

A legitimate notice would read, “This broadcast is copyright the National Football League/Office of the Commisioner of Baseball. Any retransmission or rebroadcast requires permission from the NFL/Major League Baseball.” That would be accurate (only the broadcast is copyright), and sets out the terms of reuse (permission of the copyright holder). No, it doesn’t spell out fair use rights, but neither does the copyright notice of a book; that does not constitute copyfraud.

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