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.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    johnjac (profile), Aug 29th, 2011 @ 10:45am

    Public has become the "Smurf" of the legal world

    Just like the way Smurf's use the word "smurf" to mean everything and thus nothing, so has the word Public no become.

    I for one think this is public, and will public anyone who tries to say differently. If they don't like it, they can go public themselves in the public.

     

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  2.  
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    Thomas (profile), Aug 29th, 2011 @ 11:19am

    Guess not all courts...

    believe in the constitution anymore. "Commerce trumps the first amendment"?? not really that bad considering the feds throw people into jail without cause and they are never seen again.

     

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  3.  
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    Ninja (profile), Aug 29th, 2011 @ 11:34am

    Re: Public has become the "Smurf" of the legal world

    Public you! You clearly don't think of the public do you?

    But... But... The public!

     

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  4.  
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    Anonymous Coward, Aug 29th, 2011 @ 11:34am

    Re: Public has become the "Smurf" of the legal world

    :D

    Yeah, public them and the public they publicked in on!

     

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  5.  
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    mikey4001 (profile), Aug 29th, 2011 @ 11:35am

    So, now that high school sporting events are no longer "public," I assume that while in attendance I am now free to carry a firearm, and/or consume massive quantities of alcohol while getting a lap dance from a stripper. The half-time show is gonna kick so much ass this year...

     

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  6.  
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    Ninja (profile), Aug 29th, 2011 @ 11:36am

    WIAA reminded me of RIAA and I honestly laughed when I thought them doing a collective "Weeeeeeee!" before suing. Go figure, I think I need therapy.

    Ahem. Midas turned everything to gold when he touched it. It seems that anything that involves data transferring over wires or wireless turns to shit when an US court touches it.

     

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  7.  
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    Anonymous Coward, Aug 29th, 2011 @ 11:36am

    Re: Guess not all courts...

    If the government is supposed to represent the public (stop laughing), then isn't this court saying any commercial interest trumps the government?

     

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  8.  
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    Squirrel Brains (profile), Aug 29th, 2011 @ 11:41am

    I would love to see the people openly flaunt this ruling. Everybody at one of the games should twitter a play-by-play of the game. Since it apparently isn't a copyright issue, there are no statutory damages.

     

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  9.  
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    Anonymous Coward, Aug 29th, 2011 @ 11:46am

    Public schools are not really "public places". If you want to prove it, just try going in and wandering around an elementary school yard as an adult, smiling at the kids. It's won't be long before the cops are on you and you have to asnwer questions. You could very likely be charged with trespass.

    Being a "public" school (owned by the state) doesn't make it directly into a a "public space".

     

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  10.  
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    Ima Fish (profile), Aug 29th, 2011 @ 11:48am

    Re:

    "Since it apparently isn't a copyright issue, there are no statutory damages."

    Good point!

     

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  11.  
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    Anonymous Coward, Aug 29th, 2011 @ 11:49am

    Re:

    Yeah! Did you know the public park isn't a public space either, because, hey, try to walk into a public park and start mugging people, and watch how fast you get charged with a crime!

     

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    Ima Fish (profile), Aug 29th, 2011 @ 11:49am

    Re:

    "Being a "public" school (owned by the state) doesn't make it directly into a a "public space"."

    It is when the school invites the public to attend and sells tickets.

     

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  13.  
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    Anonymous Coward, Aug 29th, 2011 @ 11:56am

    Re: Re:

    It is not clear that it becomes "public" when you sell tickets to enter. That would still be a private event.

     

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    Ima Fish (profile), Aug 29th, 2011 @ 12:00pm

    Re: Re: Re:

    It's not a private event when the tickets are sold to the general public.

     

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    Mike Masnick (profile), Aug 29th, 2011 @ 12:03pm

    Re: Re: Re:

    It is not clear that it becomes "public" when you sell tickets to enter. That would still be a private event.


    Then clearly you agree that Zediva is only broadcasting privately, too, since you need to "buy a ticket" to use the service. Right?

     

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  16.  
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    Anonymous Coward, Aug 29th, 2011 @ 12:04pm

    Re: Re: Re:

    Clearly the Judge on the Zediva case thought it made it public otherwise he would not have been able to stop it.

     

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  17.  
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    Anonymous Coward, Aug 29th, 2011 @ 12:11pm

    What is the difference between this and say a state university? As far as I know high school football games are still ticketed events, just like college games, so requiring someone to have a license to broadcast the event makes sense, just because they can make money from an exclusive license doesn't necessarily make it bad. That's not to say they should stop a ticket going member from doing so, but giving someone space to do it right is not a requirement either.

     

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  18.  
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    Anonymous Coward, Aug 29th, 2011 @ 12:12pm

    This is just keeps getting better and better, now nobody can agree what public means.

     

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  19.  
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    Jeffrey Nonken (profile), Aug 29th, 2011 @ 12:12pm

    Re:

    It's a private event -- just me and a few thousand of my closest friends.

    By your logic then the following are not public spaces: movie theater, race track, stadium, live theater, hockey rink, indoor shopping mall, grocery store. Some of them require explicit permission to enter (via tickets, in the case of the sporting and theater venues) and others imply permission to the public at large (but such permission can be revoked at any time). Outside of business hours they're generally closed and locked up, usually with security.

    Apparently it's only public if it's either outside on the grass, or in your living room.

    Sorry, your conclusion is based on the wrong premise. If the public is allowed inside for an event, it's a public event. The fact that it's in what is normally a private place doesn't matter.

     

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  20.  
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    ANONYMOUS, Aug 29th, 2011 @ 12:12pm

    Zediva "broadcast"

    Is what Zediva doing truly a "broadcast", or is it "narrow-cast" or even "streaming". If only 1 receiver can receive, I think "broadcast" is the wrong word.

     

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    out_of_the_blue, Aug 29th, 2011 @ 12:17pm

    Well, it's consistent with "pro" sports monopolies.

    Without the legislation. Bet the judge is a sports nut so sees nothing wrong with this.

     

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  22.  
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    heyidiot (profile), Aug 29th, 2011 @ 12:23pm

    No right to broadcast

    I agree; I see nothing wrong with a high school having the same right as say, a State College, to restrict and license the right to broadcast a sporting event to which they are selling tickets. Not a copyright issue; not a free speech issue.

    However, I don't agree that a high school should be able to restrict the box-score, play-by-play description, or general facts about a game.

     

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    Hulser (profile), Aug 29th, 2011 @ 12:27pm

    Wait, what?

    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.

    Uh...no it wouldn't. It wouldn't mean that the students couldn't package and sell copies of their performances. It would simply mean that they couldn't prevent others from packaging and selling copies of their performances. This is not a petty distinction. It's two completely different things. It's mind boggling that the court would conflate the two scenarios.

     

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  24.  
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    Anonymous Coward, Aug 29th, 2011 @ 12:28pm

    Re: Re: Re: Re:

    Umm, nice try Mike, weasel wording again I see.

    No, a broadcaster by nature doesn't have "space", public or private. The public or private nature of a transmission would not depend on the public ownership of the point of origin.

     

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  25.  
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    MrWilson, Aug 29th, 2011 @ 12:33pm

    "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."

    Contract law seems to be the closest thing to actual law and case history that this court is applying in the ruling, and it's even doing that wrong. Contracts don't apply to third parties who aren't, by definition, parties to the contract.

    I need to make money, so you and I will make a contract which states that everyone else has to give us money!

     

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  26.  
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    Anonymous Coward, Aug 29th, 2011 @ 12:34pm

    This ruling isn't quite as bad as the TD article/headline makes it out to be.

    Although the 7th Circuit opinion does state off-hand that "tournament games are a performance product of
    WIAA that it has the right to control," that wasn't really challenged at the appellate level. The focus is not really on whether WIAA has some sort of IP or other right to exclude certain types of broadcasting, but whether any such exclusion (regarldess of what right it is based on) would violate the First Amendment.

    Regardless of whether you agree with that First Amendment conclusion, I don't think you can really cite this opinion for the proposition that you have the general right to exclude others from play-by-play reporting of a sporting event you put on.

    I mean, the "right to exclude" at issue might just be trespass (i.e., we'll escort you from the premises if we catch you giving a play-by-play broadcast without permission). That's not an IP right or anything similar, just typical real property rights.

    As the appellate opinion notes, after some procedural wrangling, "The only issues left [for the district court to decide] were (1)whether the exclusive contract for internet streaming violates the First or Fourteenth Amendments, (2) whether the fee charged to newspapers to stream games that American-HiFi elects not to broadcast violates the First Amendment, (3) whether WIAA has too much discretion to refuse licenses to media companies that want to stream games, and (4) whether the newspapers have a copyright in the four games they streamed without consent."

    In other words, it looks like the question of whether WIAA had any "ownership" rights to the streaming of the events or play-by-play descriptions was not addressed.

    Of course, I haven't read the district court opinion.

     

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  27.  
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    Anonymous Coward, Aug 29th, 2011 @ 12:39pm

    Re: Re: Re: Re:

    "It is not clear that X -> Y"

    is not the same as

    "X = not Y"

     

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  28.  
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    Anonymous Coward, Aug 29th, 2011 @ 12:41pm

    Re:

    The court (7th Circuit) does not address whether WIAA has an inherent right to stop others from doing things in this opinion, but whether excercise of such a right would violate the First Amendment.

    They are two different things.

    Although the court does use some offhand language that appears to presume that the right exists in the first place. Courts often do this, and it's a problem to the extent people arguing a position latch onto such language, but I don't think this case really means you have an exclusive right to play-by-play broadcast of an event you put on.

     

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  29.  
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    Anonymous Coward, Aug 29th, 2011 @ 12:47pm

    @Masnick:

    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

    I'm sorry... where did you get your law degree?

     

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  30.  
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    IronM@sk, Aug 29th, 2011 @ 12:55pm

    Re: Re: Re: Re: Re:

    a broadcaster by nature doesn't have "space", public or private.

    Then exactly how is it possible for anything to constitute a "public performance?"

     

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  31.  
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    Anonymous Coward, Aug 29th, 2011 @ 12:56pm

    Re:

    Uh oh. Don't bring up the fact that Masnick doesn't have a formal legal education.

    Pack of frothing at the mouth defenders responding with "what? only attorneys can comment on the law?" in 3...2...1

     

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  32.  
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    Anonymous Coward, Aug 29th, 2011 @ 12:56pm

    Re:

    I'm sorry... where did you get your law degree?

    I think he went to Make-It-Up-As-I-Go University, where he graduated Summa Cum FUD.

     

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  33.  
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    HothMonster, Aug 29th, 2011 @ 12:58pm

    By this standard, could I issue an exclusive right to film me to a friend and then go stand in the back of the good morning america set and have him sue the fuck out of them?

     

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  34.  
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    Anonymous Coward, Aug 29th, 2011 @ 12:58pm

    Re:

    This ruling isn't quite as bad as the TD article/headline makes it out to be.

    Of course it's not. I knew as soon as I read the headline that the article was pure FUD and Mike got it wrong. It's kind of sad that I can know an article's wrong just from the headline, but that's how bad things are with Pirate Mike lately. Sigh. The FUD-packing never stops around here.

     

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  35.  
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    Anonymous Coward, Aug 29th, 2011 @ 1:05pm

    Re: Re: Re: Re: Re: Re:

    Because the term "public performance" makes no reference to space.

     

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  36.  
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    Berenerd (profile), Aug 29th, 2011 @ 1:06pm

    Re:

    I suppose they don't need public money then to operate their sporting events either....

     

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  37.  
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    Anonymous Coward, Aug 29th, 2011 @ 1:07pm

    Re: Re: Re: Re: Re: Re:

    Public performance does not, by definition, happen only in public own spaces.

    One use of the word "public" does not equate to the other use of the word "public". It's just Mike playing word games. It's his version of trolling, but he failed badly.

     

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  38.  
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    MrWilson, Aug 29th, 2011 @ 1:08pm

    Re: Re:

    What relevance is discussing the particulars of a right that may not exist? You would have to assume that the right exists for there to be any meaning to the ruling. It's a de facto ruling that the right exists.

    In the same respect that there isn't a law that states that corporations are people, but courts have ruled as if it is a part of law. So it's true because courts pretend it's true and rule that way.

     

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  39.  
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    Berenerd (profile), Aug 29th, 2011 @ 1:09pm

    Re: Re: Re:

    When you use tax payer dollars to pay for the event, that makes it a public event and means that the public can view it how ever they please..

    Just sayin...

     

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  40.  
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    Chronno S. Trigger (profile), Aug 29th, 2011 @ 1:11pm

    Re: Re:

    Are you three AC's trying to say something other then what you just said? You seem to blatantly say that only attorneys can comment on the law. If you're trying to say something else, then please say it. I don't know, maybe something along the lines of "You're misinterpreting the ruling" or "You don't understand the case law". Just saying that you're not allowed to comment without being a lawyer makes people think that you don't have a clue what country you're talking about (or what planet you're on).

    So please, if you're going to say something, say it. Or you can just respond to my comment with the same level of ignorance and we can just shrug you off as a troll.

     

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  41.  
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    Gwiz (profile), Aug 29th, 2011 @ 1:12pm

    Re:

    I'm sorry... where did you get your law degree?

    Just to satiate my morbid curiosity - what exactly is wrong with Mike's statement?

     

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  42.  
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    Berenerd (profile), Aug 29th, 2011 @ 1:12pm

    Re:

    More taxpayer dollars goes to funding high school teams where college teams are supported by college tuition and fundraising (ticket prices).

     

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  43.  
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    Anonymous Coward, Aug 29th, 2011 @ 1:12pm

    Re: Re: Re:

    "What relevance is discussing the particulars of a right that may not exist? "

    Because that was the only issue challenged on appeal. This case is interesting because it was originally brought as a declaratory judgment action, meaning the plaintiff wanted a declaration of its rights w/r/t certain matters. After the initial complaint, the motion the district court decided on was whether the actions violated the First Amendment, not whether there is any inherent right to exclude others from broadcasting the WIAA event (at least, that is how the appellate opinion characterized the district court ruling).

    "It's a de facto ruling that the right exists."

    That's not how the courts work. If there is only one issue raised on appeal, they may rule on that issue even while ignoring other issues not challenged.

     

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  44.  
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    Anonymous Coward, Aug 29th, 2011 @ 1:14pm

    Re: Re: Re:

    "You seem to blatantly say that only attorneys can comment on the law."

    That's an interesting use of the term "blatant," since I've said no such thing.

    I have, on the other hand, explained in detail how the article misrepresents the ruling.

    Odd post, yours.

     

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  45.  
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    Anonymous Coward, Aug 29th, 2011 @ 1:21pm

    Re: Re:

    I've provided a summary in a couple spots above

     

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  46.  
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    Chris Rhodes (profile), Aug 29th, 2011 @ 1:22pm

    Re:

    I'm sorry... where did you get your law degree?

    Why would that matter?

     

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    NamelessOne, Aug 29th, 2011 @ 1:26pm

    soooo

    if something isn't making profit then we can do as we like...nice ruling i suspect we should start with anything 40 years old and start file sharing and using this ruling to save yourselves...."well its not making them any money"

     

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  48.  
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    Chuck Norris' Enemy (deceased) (profile), Aug 29th, 2011 @ 1:31pm

    Re:

    Where did you get yours from?

     

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  49.  
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    Jimmy the Geek (profile), Aug 29th, 2011 @ 1:36pm

    Public schools are tax funded.

    Public is in the name of Public School. This means that the sporting events were paid for by the public. You and I paid for all these sporting events with our money. If public school sporting events are not in the public domain, then what is? How can they claim the right to sell something that they don't own?

     

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  50.  
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    Gwiz (profile), Aug 29th, 2011 @ 1:41pm

    Re: Re: Re:

    I've provided a summary in a couple spots above

    I have read you comments and while I am still a bit confused (legalese tends to give me headaches - lol) it seems that you are basically saying the court ruled on whether such exclusions violate the 1st Amendment and punted on whether such exclusions are actually legal or not. (At least I think that is what you are saying, I could have it wrong).

    That seems like a reasonable assessment and I have no issue with you comments. I was curious as to what the other AC's take was - he just implied Mike had no law degree and said nothing else.

     

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  51.  
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    Anonymous Coward, Aug 29th, 2011 @ 1:47pm

    Re:

    Mike learned over time how to make very legal sounding arguments (good enough that lawyers enjoy them), but he tends to fall into the "I am right, you are wrong" mentality, forgetting that it is only the courts that get to decide that on legal matters.

    Mike has also found a few good foxholes to try to hide everything in (1st and 4th amendments, section 230 / safe harbors, and the like). It is sometimes very amusing to see him try to jam everything into one of those holes.

     

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  52.  
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    Anonymous Coward, Aug 29th, 2011 @ 1:49pm

    Re: Re:

    "looks like a clear case of fair use"

     

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  53.  
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    Anonymous Coward, Aug 29th, 2011 @ 1:54pm

    Re: Re: Re: Re:

    That's a close enough summary, I suppose.

    What get's me about Mike's legal commentary is the hubris of his tone. Here you've got Mike, who in my opinion is not particularly adept at legal analysis, summarily dismissing an opinion by Judge Diane Wood, a pretty well respected member of the federal judiciary, as contrary to case law and nonsensical, without even citing any contrary case law.

    It's like a 14-year-old smugly criticizing the way an NBA player shoots his three-pointers.

    Now, maybe the NBA player does have an awkward shot. And I believe Judge Wood's opinion here could have avoided some of the offhand dicta (i.e., words not critical to the ultimate resolution of the opinion) that may not be well ground in law, but the smug and conclusory tone of the criticism is just annoying as all hell.

     

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  54.  
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    Gwiz (profile), Aug 29th, 2011 @ 2:10pm

    Re: Re: Re: Re: Re:

    Fair enough. I respect your right to your opinion.

    This is one of reasons I enjoy this site, the open comments section. Most any issue discussed here has multiple sides and layers. The give and take in the comments is a great way to hear from different points of view and provides me with a stronger foundation on which to form my own opinions.

     

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  55.  
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    Anonymous Coward, Aug 29th, 2011 @ 2:16pm

    Re: Re: Re: Re: Re:

    What get's me about Mike's legal commentary is the hubris of his tone. Here you've got Mike, who in my opinion is not particularly adept at legal analysis, summarily dismissing an opinion by Judge Diane Wood, a pretty well respected member of the federal judiciary, as contrary to case law and nonsensical, without even citing any contrary case law.

    At this point I think Mike really believes he understands the law better than appellate court judges. Hubris indeed. Idiocy as well, but certainly hubris.

     

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  56.  
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    BeeAitch (profile), Aug 29th, 2011 @ 2:19pm

    Re: Public has become the "Smurf" of the legal world

     

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  57.  
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    PrometheeFeu (profile), Aug 29th, 2011 @ 2:30pm

    Re: Re:

    Oh god please make it so! I am not sure how much of my money goes to having a bunch of guys run around in funny costumes, but $0 is the only acceptable amount.

     

    reply to this | link to this | view in thread ]

  58.  
    icon
    BeeAitch (profile), Aug 29th, 2011 @ 2:30pm

    Re: Re:

    Try reading more than just the headline next time.

     

    reply to this | link to this | view in thread ]

  59.  
    icon
    PrometheeFeu (profile), Aug 29th, 2011 @ 2:31pm

    Re: Re:

    Wait, smiling to children is comparable to mugging people? Oh my god I'm in so much trouble...

     

    reply to this | link to this | view in thread ]

  60.  
    identicon
    HothMonster, Aug 29th, 2011 @ 2:32pm

    Re: Re: Re: Re: Re: Re: Re:

    its still a public event if your selling tickets to the public. But you like to dodge the fact that someone pointed out you were wrong and switch to the personal attacks. Its your version of trolling.

     

    reply to this | link to this | view in thread ]

  61.  
    icon
    PrometheeFeu (profile), Aug 29th, 2011 @ 2:38pm

    It is important to remember that courts do make a distinction between public places and public forums for First Amendment purposes. So for instance, you can protest on the sidewalk or in a park without having to ask for permission, but you can't protest in a post office. I don't like it, but it may be that stadiums are not public forums. In fact, that sounds pretty likely. Now if only we stopped spending my money on sports, that would be nice.

     

    reply to this | link to this | view in thread ]

  62.  
    identicon
    cultureisnotacrime, Aug 29th, 2011 @ 2:49pm

    So according to the ruling...

    "Interpreting the First Amendment to provide the media with a right to transmit an entire performance or to prohibit performers from charging fees would take us back centuries, to a time when artists or performers were unable to capture the economic value of a performance,"
    -p22 of the Decision


    So the WIAA is going to be giving all that money directly to the athletes? No?

    Are High School Athletics Associations 'performers'? What do they perform? I don't think the media organizations are interested in reporting on the WIAA, they would prefer to record the performance of the uncompensated athletes.

     

    reply to this | link to this | view in thread ]

  63.  
    identicon
    Anonymous Coward, Aug 29th, 2011 @ 3:22pm

    Re:

    That was my thought as well. If it is not copyright, what law will they point to to prevent "infringement"? They can't claim violation of a contract to which other entities are not a party.

    Maybe that was the appeals court's secret angle. I wish.

     

    reply to this | link to this | view in thread ]

  64.  
    icon
    Richard (profile), Aug 29th, 2011 @ 4:04pm

    Re:

    I would love to see the people openly flaunt this ruling.

    I would rather they flouted it - I expect the AC trolls to flaunt it.

     

    reply to this | link to this | view in thread ]

  65.  
    icon
    Richard (profile), Aug 29th, 2011 @ 4:08pm

    Re: Wait, what?

    In fact they would have copyright on the cinematography of their own filming of the event.

    Who are these judges - and how can someone so stupid get into such a position?

     

    reply to this | link to this | view in thread ]

  66.  
    identicon
    Ed C., Aug 29th, 2011 @ 4:11pm

    Re: Re: Guess not all courts...

    Sadly, yes.

     

    reply to this | link to this | view in thread ]

  67.  
    identicon
    Willton, Aug 29th, 2011 @ 5:05pm

    Re: Re: Re:

    You seem to blatantly say that only attorneys can comment on the law.

    You seem to be blatantly swinging at a strawman.

     

    reply to this | link to this | view in thread ]

  68.  
    identicon
    Willton, Aug 29th, 2011 @ 5:10pm

    Re: Re: Re:

    "Independent invention happens all the time. We have studies."

     

    reply to this | link to this | view in thread ]

  69.  
    identicon
    Ben, Aug 29th, 2011 @ 5:11pm

    Re: Guess not all courts...

    What good is the Constitution if it can be trumped by, not the legislative branch (who make the laws), the executive branch (who oversee the government), but the judicial branch (whose sole purpose is to uphold the laws)?

    I know the courts like to think they can make up laws but in the end that is outside their jurisdiction by a long shot.

     

    reply to this | link to this | view in thread ]

  70.  
    identicon
    Willton, Aug 29th, 2011 @ 6:14pm

    Re: Re:

    By your logic then the following are not public spaces: movie theater, race track, stadium, live theater, hockey rink, indoor shopping mall, grocery store. Some of them require explicit permission to enter (via tickets, in the case of the sporting and theater venues) and others imply permission to the public at large (but such permission can be revoked at any time). Outside of business hours they're generally closed and locked up, usually with security.

    These spaces may be open to the public, but they are still run by private enterprises that are not subject to 1st Amendment restrictions. They are not public fora where anyone is free to say whatever they please at any given time. If you feel differently, then feel free enter one such place, stand on a soapbox and proselytize. See what happens then.

    Apparently it's only public if it's either outside on the grass, or in your living room.

    Wrong: it's only public if it is a public forum. Your living room clearly not such a place. You are allowed to restrict anyone's speech inside your home.

    Sorry, your conclusion is based on the wrong premise. If the public is allowed inside for an event, it's a public event. The fact that it's in what is normally a private place doesn't matter.

    Your conclusion is based on an irrelevant premise. Whether a place is a public forum or whether an event is a public event has everything to do with who owns the property and who has organized the event. It has nothing to do with the identity of the persons attending.

     

    reply to this | link to this | view in thread ]

  71.  
    identicon
    Anonymous Coward, Aug 29th, 2011 @ 6:35pm

    Re: Re: Re: Re: Re: Re: Re:

    In space, no one can hear you publicly perform.

     

    reply to this | link to this | view in thread ]

  72.  
    identicon
    Anonymous Coward, Aug 29th, 2011 @ 6:39pm

    Re: Re: Re: Re:

    "Mike is wrong and here's why."

     

    reply to this | link to this | view in thread ]

  73.  
    identicon
    Anonymous Coward, Aug 29th, 2011 @ 9:33pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    Nope, again, you are mixing the words up.

    A public school can have a private event. Not all events in a public school are public by nature. A music recital for parents only, example, is private, not public. Yet it happens in a public school and the public is part of it.

    It's word games. The school has the right to refuse access to anyone it wants to refuse access to, provided those rules are applied evenly and equally without discrimination based on race, creed, color, sexual orientation, or handicap. They should be allowed to grant exclusive rights to whoever they like. Why not?

     

    reply to this | link to this | view in thread ]

  74.  
    icon
    John William Nelson (profile), Aug 30th, 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.)

     

    reply to this | link to this | view in thread ]

  75.  
    icon
    The eejit (profile), Aug 30th, 2011 @ 5:39am

    Re: Re: Re: Re: Re: Re: Re: Re:

    WRONG. It's "In space, no-one can hear you smurf."

     

    reply to this | link to this | view in thread ]

  76.  
    icon
    The eejit (profile), Aug 30th, 2011 @ 5:43am

    Re: Re:

    See the word "seem"?

    It means it looks like; preceding a statement, it means that to that person, it looks like X.

    But apparently, Fox News is calling. They want their Truth back.

     

    reply to this | link to this | view in thread ]

  77.  
    icon
    wvhillbilly (profile), Aug 30th, 2011 @ 9:29am

    Out of whole cloth...

    If the courts can make up exclusive rights out of whole cloth without any basis in law, they can make up pretty much any "law" they want to out of whole cloth. Liberal, activist courts have been doing this for years, and it seems to me this is violating the constitution by usurping the exclusive legislative function of congress. It is the job of the courts to interpret and enforce existing laws made by congress, not invent new "laws" that have no basis in existing law.

     

    reply to this | link to this | view in thread ]

  78.  
    identicon
    Anonymous Coward, Aug 30th, 2011 @ 10:06am

    Response to: Anonymous Coward on Aug 29th, 2011 @ 11:46am

    That point went so far over your head it's comical.

     

    reply to this | link to this | view in thread ]

  79.  
    identicon
    Anonymous Coward, Aug 30th, 2011 @ 12:42pm

    Re: Re: Re: Re: Re: Re: Re:

    You've missed this point rather comically too.

     

    reply to this | link to this | view in thread ]

  80.  
    identicon
    Anonymous Coward, Aug 30th, 2011 @ 12:50pm

    Re: Re: Re:

    It's like the trolls instinctively know when to latch on to someone far more well spoken than they on any shred of agreement they can find without reading anything in the article or the comment they respond to.

     

    reply to this | link to this | view in thread ]

  81.  
    identicon
    Anonymous Coward, Aug 30th, 2011 @ 12:58pm

    Re: Re:

    AC learned over time how to make very legal sounding arguments (good enough that lawyers enjoy them), but he tends to fall into the "I am right, you are wrong" mentality, forgetting that it is only the courts that get to decide that on legal matters.

    AC has also found a few good foxholes to try to hide everything in (copyright, patents, trademarks, CFAA, and the like). It is sometimes very amusing to see him try to jam everything into one of those holes.

    Yeah, that argument works equally well both ways...

     

    reply to this | link to this | view in thread ]

  82.  
    icon
    btr1701 (profile), Aug 30th, 2011 @ 2:40pm

    Re: Re:

    > They can't claim violation of a contract to
    > which other entities are not a party.

    They'll probably claim it's tortious interference with the contract between WIAA and their chosen broadcaster.

     

    reply to this | link to this | view in thread ]

  83.  
    icon
    btr1701 (profile), Aug 30th, 2011 @ 2:42pm

    Re: Re:

    > It is when the school invites the public to
    > attend and sells tickets.

    The White House is a public (government) building and tickets are sold for the tour to the general public.

    Does that mean you can go to the White House and do whatever you want and they can't keep you out?

     

    reply to this | link to this | view in thread ]

  84.  
    icon
    btr1701 (profile), Aug 30th, 2011 @ 2:48pm

    Re: Re: Re: Re:

    > When you use tax payer dollars to pay for
    > the event, that makes it a public event and
    > means that the public can view it how ever
    > they please.

    Really?

    Hmmm... every year Congress hosts a 4th of July concert on the West Lawn of the Capitol Grounds (public/government land, concert paid for by tax money). I somehow don't think your theory will hold up that the public can view that concert however it pleases. If for example, some members of the public decided they wanted to view it from the West Portico and climbed the barricades to get there, the Capitol Police and the entire DC law enforcement apparatus might have a difference of opinion with you on the rights of the public-- and they'd win in court, too.

     

    reply to this | link to this | view in thread ]

  85.  
    icon
    btr1701 (profile), Aug 30th, 2011 @ 2:50pm

    Re: Re:

    > More taxpayer dollars goes to funding high
    > school teams where college teams are supported
    > by college tuition and fundraising (ticket prices).

    Which makes absolutely no difference in the distinction between public and private venues.

    State universities are, by jurisprudential definition, government entities and are therefore public in nature.

    Private univerisities are not.

     

    reply to this | link to this | view in thread ]

  86.  
    icon
    btr1701 (profile), Aug 30th, 2011 @ 2:55pm

    Re: Re:

    > forgetting that it is only the courts that
    > get to decide that on legal matters.

    No, it's only the courts that get to *enforce* their decisions. Anyone can decide an issue of law. Putting on a black robe and sitting up on a bench with a gavel doesn't confer upon a person some magical access to wisdom from which the rest of us are excluded.

     

    reply to this | link to this | view in thread ]

  87.  
    identicon
    25, Aug 30th, 2011 @ 4:14pm

    Re: Re: Re: Re:

    The question before the Court was simply whether the WIAA can restrict and control its events in such a manner. The rights are real property and contractual.

    The money shot: "Gannett does not challenge other restric media access to WIAA’s events."

    Could you allow a first person to smoke cigarettes inside your house and not allow a second person? Could you allow a first person to take pictures of the inside of your house but not a second person?

     

    reply to this | link to this | view in thread ]

  88.  
    icon
    nasch (profile), Aug 30th, 2011 @ 7:35pm

    Re: Re: Re: Re: Re:

    Is the inside of my house equivalent, legally, to a public sports event at a school?

     

    reply to this | link to this | view in thread ]

  89.  
    icon
    nasch (profile), Aug 30th, 2011 @ 7:36pm

    Re: Re: Re:

    No, but it might mean they can't stop you from describing the tour.

     

    reply to this | link to this | view in thread ]

  90.  
    identicon
    Virginia Llorca, Sep 3rd, 2011 @ 9:37pm

    Public places

    I disagree.

    Why would you choose a movie theater as an example of a public place? It is not "open" to the public.

     

    reply to this | link to this | view in thread ]

  91.  
    icon
    nasch (profile), Sep 4th, 2011 @ 12:07pm

    Re: Public places

    Just because you have to buy a ticket doesn't mean it's not open to public. Any member of the public can buy a ticket and walk in, so it's open to the public. If it were by invitation only, it wouldn't be open to the public.

     

    reply to this | link to this | view in thread ]

  92.  
    identicon
    buy house, Sep 21st, 2011 @ 11:38pm

    house

    While the real estate prices capacity stay behind quite stable, the business activity is predictable to slow down considerably. This way those homeowners in a fright to sell might have to plunge their prices significantly in order to clear up. Others may need to pass the time longer than in earlier years to put on the market.

     

    reply to this | link to this | view in thread ]

  93.  
    identicon
    Real estate for rent, Oct 19th, 2011 @ 6:52am

    I don't think there is a person around that would disagree that our housing market has seen better days. Our home was purchased three years ago, at what we thought was the lowest point in the market. Since, then it has only gotten worse. Our taxable value keeps plummeting, which since we are living there forever we are okay with because lower taxes equal more money in our pocket.

     

    reply to this | link to this | view in thread ]


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