University Of Washington's Defense Of Twitter Limits On Journalists More Ridiculous Than The Restrictions Themselves

from the no-you-DON'T-get-to-own-descriptions-of-the-game dept

Following the story of how the University of Washington reprimanded a reporter for live tweeting a game, the University has been trying to "defend" its ridiculous social media policy. The basic justification is, to put it mildly, bullshit:
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.”
Except... that's not true. The "live description of events" is not protectable by the University. It's possible that someone could claim copyright over their own description of the events, but the University has no IP rights on the "live description of events." Such a thing simply doesn't exist and it would be a massive First Amendment issue if it did. That someone there thinks such a "right" exists is ridiculous.

Of course, we know what this is really about. It's about money. Specifically, the University's broadcast deals:
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.”
But there's no intellectual property right to protect the bad deal someone made just because technology makes live reporting less scarce. This is the University making stuff up because it thinks it's protecting a broadcast deal.

Elsewhere, the University pushed out an even more ridiculous claim: that this was really about "benefiting the fans." Stunningly, an incredibly gullible reporter seemed to buy this argument:
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.
Kudos to the UofW spinmeister who spun that one. First off, you can't just make up a "creative protection" right that does not exist under the law. Sorry. You can't do it. There are certain protections granted under copyright law -- but protection from someone describing events on their own is not one of them, no matter how much the University wishes it to be true. And what ever happened to reporters fact checking when people tell them something that's completely made up. Oh and, really? This complete bullshit claim is a step forward? Do tell...
Sporting events put on by the University of Washington can be considered the school’s “creative property” in a way.
No, actually, they can't. They're events and the University can put limitations on who can attend and such, but they have no "property" right in someone describing a game. None. Stop repeating it. It's not true.
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.
Actually, yes it is unreasonable, and there's no law that gives them that right. Sorry, "reporter" Dusten Carlson, you've been spun, hard. Imagine this thinking anywhere else in the world. Let's see... "From a business perspective, Enron took the greatest investment risk regarding their business, and they're gambling on the money customers are spending. It's not unreasonable to want (and deserve) some control over how reporters provide the flow of information." See? In any other context anyone would realize this is completely ridiculous.

Even a tiny bit of research would have turned up the case NBA vs. Motorola, which actually tested some of these concepts, and they were laughed out of court. Just a few relevant quotes:
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.
That case also looked at the possibility of a "hot news" misappropriation claim. As we've discussed a bunch lately, in the last few years, there's been a sudden new interest in "hot news" -- a legal theory that had been almost entirely discarded. Thankfully, courts hearing hot news cases are not impressed lately, and it's extremely doubtful UofW has a real hot news case here as well. Again, going back to the NBA v. Motorola case, the court made it clear that information about a game simply doesn't meet the tests required to get a hot news right. While the technology (distributing data to pagers) was slightly different, replace a few obsolete technologies with the modern equivalent, and the court could easily be talking about Twitter:
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.
In other words, no dice. At all.

Back to UofW's ridiculous defense:
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.
Again, this is complete bullshit. The fact that the University doesn't want its own "social engagement trumped" is meaningless. Who would possibly think that's a legitimate explanation? "I'm sorry, you can't write about my company, because we have our own social engagement effort going on, and you might trump it." A real reporter would laugh at such a ridiculous explanation. There is nothing in the law that says UofW has a right to be free from competition, no matter how awesome its social media engagement might be. If it's true that it's really so great and that "fans already know" to go there and "usually turn there first" then why would the University care about the live tweeter? According to that argument, fans would already be getting the official feed, and so the journalist tweeting wouldn't make any difference.

Even if we take the University of Washington's ridiculous and clearly bogus argument as factual, the argument is still completely wrong and stupid. The idea that a reporter tweeting out info about a game somehow takes away from demand of fans to watch or listen to official broadcasts is ludicrous, and suggests a policy written by people who aren't actual sport fans. In what world does a 140 character update replace a broadcast of the game? As a sports fan who uses both, I can assure you that at no point have I ever considered the many people who tweet about things happening in a game I'm interested in an adequate replacement for an audio or video broadcast. Never. Yes, I'll use it in a pinch to see what's going on while I'm busy doing something else, but that's different.

More importantly, what a team should want is for fans to be able to remain connected and interested however possible. Because if they don't care about the team at all, it won't matter where they're funneling people. It'll keep them as fans, who will want to attend live events or watch/listen to official broadcasts when they're available.

Sorry, University of Washington (and gullible reporters), just because you make up some sort of bogus imaginary property right that doesn't exist, it doesn't mean anyone has to pay attention to it. And, yes, as we noted originally, it is true that the University can choose who to credential and who not to. But that's merely a policy decision, not anything to do with a property right -- and as explained above, either way, it's not reasonable. It's shortsighted and can only serve to annoy fans, rather than help them.

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  1. icon
    John Fenderson (profile), 15 Nov 2012 @ 8:45am

    Dear U of W...

    Sometimes you're far better off just saying "no comment".

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