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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Filed Under: broadcasting, copyright, first amendment, sports, wisconsin
Companies: wiaa
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Public has become the "Smurf" of the legal world
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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Re: Public has become the "Smurf" of the legal world
But... But... The public!
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Re: Public has become the "Smurf" of the legal world
Yeah, public them and the public they publicked in on!
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Re: Public has become the "Smurf" of the legal world
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Guess not all courts...
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Re: Guess not all courts...
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Re: Guess not all courts...
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.
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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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Good point!
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Maybe that was the appeals court's secret angle. I wish.
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> which other entities are not a party.
They'll probably claim it's tortious interference with the contract between WIAA and their chosen broadcaster.
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I would rather they flouted it - I expect the AC trolls to flaunt it.
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Being a "public" school (owned by the state) doesn't make it directly into a a "public space".
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It is when the school invites the public to attend and sells tickets.
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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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Zediva "broadcast"
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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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Then exactly how is it possible for anything to constitute a "public performance?"
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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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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?
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is not the same as
"X = not Y"
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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?
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Just sayin...
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> 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.
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> 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?
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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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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.
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Public places
Why would you choose a movie theater as an example of a public place? It is not "open" to the public.
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Re: Public places
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Response to: Anonymous Coward on Aug 29th, 2011 @ 11:46am
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No right to broadcast
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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> 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.
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Well, it's consistent with "pro" sports monopolies.
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Wait, what?
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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Re: Wait, what?
Who are these judges - and how can someone so stupid get into such a position?
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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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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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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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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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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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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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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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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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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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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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You seem to be blatantly swinging at a strawman.
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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.
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I think he went to Make-It-Up-As-I-Go University, where he graduated Summa Cum FUD.
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Just to satiate my morbid curiosity - what exactly is wrong with Mike's statement?
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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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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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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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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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Why would that matter?
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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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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...
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> 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.
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soooo
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Public schools are tax funded.
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So according to the ruling...
-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.
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This is not an uncommon right
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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Out of whole cloth...
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house
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