Federal Court Invents A New Intellectual Property Right: The Money Makes It So Exclusive Right To Record

from the wtf? dept

Two years ago we wrote about a troubling case coming out of Wisconsin, in which the Wisconsin Interscholastic Athletic Association (WIAA) claimed that it could allow a single exclusive broadcaster for high school sporting events in the state. The Gannett newspapers challenged this by streaming four different events online, eventually leading to this lawsuit. There were other highly questionable limitations on news media, including a claim that they could not even report play-by-play data. That part is the most ridiculous, as that seems like a clear violation on free speech rights, and also goes against previous caselaw that has allowed the reporting of factual game information. But, stunningly, last year, a district court judge ruled that commerce trumps the First Amendment, and since the WIAA needs to make money, such deals are just fine. This didn't make much sense to us, and we hoped that it would be overturned on appeal.

No such luck.

Ima Fish alerts us to the appeals court ruling which upheld the lower court and seems to endorse the creation of a wholly made up new form of intellectual property right that has no basis in the law. The court clearly says that this is not a copyright case, so copyright law doesn't apply. So what right exactly is WIAA granting to its broadcasting partner? That's not clear at all from the ruling. If it's not copyright, it appears to be something entirely made up by the appeals court, which might be loosely defined as "the right to make up restrictions if it makes money." I'm not joking. The court repeatedly focuses in on the idea that the WIAA needs to make money, and that somehow makes it okay to grant a single company an exclusive license.

I don't see how this makes much sense. I could see that they should be allowed to grant a license to an "official" broadcaster, and even give them additional access, but I don't see how they can stop someone else from recording the material and broadcasting it as well -- especially when they admit that it's not a copyright issue.

And since this new exclusive made up imaginary right has no basis in law, we don't know what any exceptions are. Is there a fair use exception like in copyright? The contract says other agencies can show two minutes of streaming video from events, but it doesn't need to say that, and fair use shouldn't be determined by a contract anyway. The whole thing seems bizarre and troubling, in that it seems to suggest that public entities can create a special kind of exclusive broadcast intellectual property right if they use it to make money.

Separately, one small part of the case struck me as interesting in relation to a different case we talked about recently. In the Zediva case, we thought it was ridiculous that the court declared a paid video broadcast to your home as a public performance because the Zediva service was offered to "the public." Yet, in this case, the court insists that sporting events at public schools (which are open to the public) are, in fact, "nonpublic forums." I don't think either description makes sense. A private home is a private place. A public sporting event is a public event.

Finally, the court seems to totally overstate the situation in the ruling here and suggests a clear misunderstanding of the public domain:
The logical implications of Gannett’s argument are breathtaking. Suppose a high-school orchestra were to perform one of Bach’s Brandenburg Concertos or the drama club put together a rendition of Othello (both of which are in the public domain). Gannett’s argument would require the conclusion that the students have no right to engage in the common practice of packaging their performance and selling it to raise money for school trips.
While some of Gannett's arguments may have risen to that level (it did suggest that public institutions shouldn't be able to make money this way), the court also seems to suggest that just because you can't have exclusivity, you can't make money. That's silly, and wrong.

Gannett is still considering its options, but it can ask for an en banc (full court) review or it can appeal to the Supreme Court. I'm hoping it will fight this, because the ruling seems totally nonsensical.

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  1. icon
    John William Nelson (profile), 30 Aug 2011 @ 4:52am

    This is not an uncommon right

    It reminds me of the situation with Stonehenge a while back. The folks behind the maintenance of the Stonehenge monument declared a copyright in all photos of Stonehenge. This was wrong.

    However, they may potentially restrict the right to take pictures inside the Stonehenge enclosure they manage subject to the photographer either paying the Stonehenge folks so the photos can be used commercially or promising not to use the photos commercially.

    This would not apply to any of the photos taken outside of the enclosure, however.

    Here, you have sporting events. The WIAA has the ability to control access to these events through license. (Through the organization's charter, thereby subjecting member schools to its rules and regulations.) The license may subject someone to restrictions on filming the event.

    This is no different than what you see at other sporting events, such as college or pro football. In fact, much of the conference fighting in college football right now (with Texas A&M threatening to leave the Big 12 for the SEC) comes down to who has control over the sale of TV rights. (The Big 12 has allowed the University of Texas to create it's own "Longhorn Network," thus getting TV revenue directly from distributors rather than through a conference-wide Big 12 deal.)

    There are also fights over this in pro sports. Dallas Cowboys owner Jerry Jones has constantly sought to broaden his ability to market his team's rights—TV, merchandise, etc—himself, rather than through league-wide contracts. He also seeks to avoid revenue sharing of the income he makes through these sales.

    So what do these agreements generally look like? First, they are based on the standard property right of license.

    A license grants someone the ability to enter property. When you go to the theater, or a restaurant, or a store, you are there by license. These licenses can be implied or explicit.

    Licenses allow property owners to set conditions for admission. They can demand you leave cameras outside, for example. They can demand that, prior to entry, you sign away any copyrights to photos or videos you take with your cameras.

    Once this initial step is taken, then copyright can come into play. If you've waived your right to the copyright on photos or videos you've taken, then you're violating copyright when you distribute them without the permission of the property owner (who now owns the copyright).

    The real question in the WIAA example is whether this is good public policy. Should the WIAA or the individual schools/communities have the right to establish broadcasting rights? Further, because this is a quasi-governmental organization, does the WIAA have a right under the WIAA to operate in this manner?

    The copyright and property questions, however, are clear as day.

    And, to that point, the fair use analysis is the same under this situation as it would be for other works. A random fan who took a grainy video on his camera phone will have stronger fair use exception arguments than a Gannet staffer who snuck in a quality camera with the intent to video the event for later streaming.

    So there you go, too much information and TL;DR. Forgive my lack of brevity; I didn't have more time to write a shorter post. (And I have a sinus infection headache which is making me a bit spacey.)

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