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.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.
“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.”
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.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:
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.
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.In other words, no dice. At all.
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.
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.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.
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.
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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Filed Under: copyright, fact checking, journalism, live stream, property rights, sports, tweeting, university of washington
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"It�s not unreasonable to want (and deserve) some control over the accuracy of the flow of information."
It is not unreasonable to WANT control of the flow of information. That control could be useful in many ways ,one of them is making money.
It is unreasonable for people to recieve that control, imaginary or not. Neither do they Deserve anything in, what Woodward correctly identified as, a gamble. It's a gamble, you do not deserve to succeed at gambling.
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Is my wish unreasonable?
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"I know everyone else is watching the football, but there's a repeat of an episode from season 3 of Friends on the other channel, and I want to watch it now, even though I've got the complete series on DVD."
I submit that some wishes are unreasonable, regardless of whether they've got a cat's chance in hell of coming to pass.
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It is not unreasonable that people's wants/wishes are selfish. It's completely expected and natural for that to be the case. However, it is unreasonable if they expect everyone else to give in to their selfish desires. It is not unreasonable to want to eat your cake and have it, too. It is, however, completely unreasonable to expect that to happen.
I'll admit it's a bit pedantic, though.
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And in the case of a truly selfish desire, I think it's fair to say that the hope -- and by extension, the desire -- is unreasonable.
But we're getting into "how many angels can dance on the head of a pin" territory, and I'm sure there are more productive discussions happening further down the thread.
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That doesn't mean anyone deserves it nor should it happen just because we want it.
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FTFY
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Now, if you want to argue that UW is a state actor and can't set limits on speech...that's a more interesting argument I think.
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> the issue to court
Take them to court based on what? The university's policy may be stupid and nonsensical, but they have a right to be stupid and nonsensical if they want.
Conversely, there's no fundamental right for a reporter to be allowed access to a sporting event to cover it, so if the university wants to make reporters agree to and abide by these silly rules in order to be granted access, there's no legal recourse for the reporter. He/she has a choice to make-- agree and get access or don't agree and buy a ticket like everyone else and cover the game from the stands.
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So anyone has a right to set up camera and broadcast the game?
Anyhoo, I (reluctantly because it's meaningless sports crap) think UW is basically in the "right", though fumbling with wrong instruments and venue. I'm pretty sure that a (public) university has a common law "right" to control broadcasting of its games. -- My view is simply due to what I think most people would say as to who owns the broadcast rights, including the right to "tweet" about it.
Mike always ignores common law opinions, is just yet again going into weenie tizzy with legalisms.
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Re: So anyone has a right to set up camera and broadcast the game?
Similarly IF Mike ever put any money into Techdirt's content, he'd morally "own" it. But as he simply lifts it from elsewhere, he CAN'T claim to own it, so wisely offers it for "free".
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Re: Re: So anyone has a right to set up camera and broadcast the game?
But, whatever, you can carry on with your little game.
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The UW doesn't have a right to control the "broadcasting" of a description of a person's experience, regardless of a "contract." They can ask him to leave, but they can't tell him how much or little he can say about what he observed. UW doesn't own rights to facts that the reporter witnessed because he saw them occur with his own eyes and it doesn't own rights to what the reporter might have thought and expressed as his own opinions of what he saw.
Just being on the UW's property doesn't make everything that happens on that property belong to the UW. Contracts cannot include unconscionable clauses or at least unconscionable causes have no legal enforceability, so even if the UW were to include fine print on the ticket saying that they own the rights to broadcasting even a description of the sports event 140 characters at a time or less, it's simply not true legally.
If there's a common law refutation of Mike's analysis, feel free to cite it and illustrate via case law how it can and does apply to this issue.
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Wait, why wouldn't a contract matter. I'm not saying their media Twitter policy does or does not constitute a binding contract, but if it does, then they would have a contractual right to control broadcasting of the experience of the party bound by the contract.
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The contract cannot stipulate that the attendee's speech belongs to the UW. The contract cannot stipulate that the UW can block their freedom of speech to report facts that they observed or express opinions they have about what they observed. Such clauses would be unconscionable.
The contract may say that you're not able to use your phone to tweet about the event more than 20 times, but they can't physically stop you from doing so. A physical constraint would be an unconscionable clause. They can ask you to leave when you break the contract. They can interrupt your tweeting when they haul you off the premises when you refuse to leave or have you arrested when it's determined that you are trespassing after refusing to leave, but the actual act of stopping you from tweeting or "owning" the rights to what you tweet is not conscionable.
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What? Of course it does. It creates a contractual right. Which is a right enforceable through various legal remedies. You can even get specific performance in some cases (i.e. a court ordering the other party to do what they said they'd do).
" So if the contract says you can't tweet more than 20 times during the event while describing the event, and the attendee violates that, the contract is broken and the attendee can be asked to leave. "
Actually, being asked to leave probably has little to do with the contractual right, and everytying to do with the UW's real property rights.
"The contract cannot stipulate that the attendee's speech belongs to the UW. The contract cannot stipulate that the UW can block their freedom of speech to report facts that they observed or express opinions they have about what they observed. Such clauses would be unconscionable."
Really? You've got some case law to back that statement up, I presume. Mind sharing it?
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Not enough details to know for sure.
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Re: So anyone has a right to set up camera and broadcast the game?
And I'm pretty sure you just made that up. By specific act of Congress, you cannot broadcast someone else's footage of the game without their permission. However, nothing whatever stops you from filming and broadcasting it yourself.
Of course if you do and are noticed, then UoW will ask you to leave, which they have a right to do.
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Re: So anyone has a right to set up camera and broadcast the game?
Since you seem to be stuck on where the tweeting took place, in your view, if the reporter was at home watching it on TV and tweeting, that would be ok?
Also, I think there's a large amount of wiggle room in the term "broadcast". If you consider 140 character tweets about a game to be broadcasting, what about an attendee describing the game in detail to a friend afterwards? Couldn't that be considered broadcasting as well? And how far do you have to go in your tweets to cross the threshold into broadcasting? Is tweeting "This game is AWESOME!!!!!!!!!" broadcasting? Tweeting a play-by-play? Somewhere in between? Who decides?
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Re: So anyone has a right to set up camera and broadcast the game?
Legally, they are, of course. They can decide who gets to attend the games and base that decision on pretty much anything they want.
But nonetheless they're being idiots, and their explanation of their rule makes them look even more idiotic. I think that's the fundamental point of the article.
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Re: So anyone has a right to set up camera and broadcast the game?
So by extension, if they want to control the use of twitter (phones, tablets, etc), then they need to prohibit the possession of any device that can be used to tweet. While they can legally do this, they will not, because then they will most likely have a game without anyone but the players and coaches there. I mean just how many would be willing to go without a phone?
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So by extension, if they want to control the use of twitter (phones, tablets, etc), then they need to prohibit the possession of any device that can be used to tweet. "
Not really. They can just provide you a copy of their tweeting policy, and ask you to follow it (which is exactly what they've done), and deny you entry if you decline.
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Re: So anyone has a right to set up camera and broadcast the game?
Yes the UW, since it is their property, can limit who uses a camera. That has nothing to do with a claim under some intellectual property law.
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Which UW has not made, right?
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Dear U of W...
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To expect push back from this dude is like wishing to win the lottery; not gonna happen.
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Oh, then there is no way anything he says should be taken as an actual description of what anyone at UW said.
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Of course if they repeat it enough, and enough people listen, it effectively becomes true. Standard rhetorical tactic.
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They imagine that the "live description of events" is their property.
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Apparently the judge is not a fan of pro wrestling. Or anybody that Don King has ever promoted.
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What is it with you Americans and university/collage sports?
Why does anyone even give a crap when students throw around a ball?
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You are all missing the obvious
It is obvious that Mike is just in bed with Google on this one. Everyone knows that Google's satellite pictures are getting better and better. Now they also have facial recognition. Lip reading and real time transcription can't be far away.
Sure, we're talking about tweeting now, but the logical next step is for Google to broadcast games live from a satellite view while avoiding all external licensing or fees. It'll be pretty cool. All the players will have little floating name tags and stats near them and their voices will be realistically dubbed in from lip-reading transcripts.
Since even the live broadcasters can't hear what is happening in "private" conversations on the sidelines or on the field, this will be an incredible competitive advantage. Other broadcasters and competing teams will pay big $$$ to get this information without, say, a one-minute delay.
Of course, this works best for games played in open-air arenas, but with Google's new "gx-ray" technology, (complements of Homeland Security), peering through buildings and such will be no problem. Figuring out how to dub uniforms back onto the players is still in R&D, but meanwhile, Google might be able to leverage gx-ray sales to "adult" sites. With a more powerful setting and tie-ins to sites like WebMed, they could provide immediate diagnoses to team doctors -- for a fee, of course.
Finally, tying in both historical and real-time data to their incredible computing capacity may allow Google to sell real-time advice to coaches on the next plays most likely to succeed. If that works, what price would be too high?
Actually, I have to complement Mike on this one. He's seen the future and has joined the winning side.
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Credentials
> who to credential and who not to.
Why do you even need to be a credentialed reporter to do live tweets of a game?
Seems to me, if I was running a media department, I'd have my credentialed reporters doing the traditional reporting, then have another reporter just go to the game as a member of the general public-- buy a ticket and sit in the stands-- and that guy can live tweet all day long. Since he's not credentialed, he doesn't have to worry about losing any access.
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You're knocking down a straw man of your own creation.
UW can place conditions/restrictions on entry to their facilities, press passes, etc., which is what they do. It has nothing to do with claiming an IP right, as best I can tell.
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Your Enron Example is stupid
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