July 02, 2007
Exclusive Rights: The Wrong Goal for NFL

The NFL just doesn't know when to stop. The Washington Post reports on a new NFL policy limiting journalists' use of video online:

In a move designed to protect the Internet operations of its 32 teams, the pro football league has told news organizations that it will no longer permit them to carry unlimited online video clips of players, coaches or other officials, including video that the news organizations gather themselves on a team's premises. News organizations can post no more than 45 seconds per day of video shot at a team's facilities, including news conferences, interviews and practice-field reports.

Now this policy isn't copyright-based -- the NFL doesn't have copyright in the un-fixed statements of its players and coaches -- but good old real property law. The NFL teams own their facilities, and with them have the right to exclude people physically, as trespassers. So the NFL is telling sportswriters, who depend on physical access to gather the background for their stories, they'll be barred at the gates if they use more than 45 seconds of video online.

Houston Chronicle columnists John McClain and Anna-Megan Raley show the absurdity of this policy by trying to complete interviews in 45 seconds, stopwatch in hand. Even stopping at 45 seconds, they apparently violate the policy if the video is not removed after 24 hours and doesn't link to nfl.com!

While the football league may be within its legal rights on this one, its policy still reflects a fundamental misunderstanding of the medium. The league depends on independent journalists to do the research that keeps people following the sport between games, and journalists have turned to the Internet to dig deeper than they could in print or time-constrained TV. Readers go to sportwriters' websites and blogs precisely for perspectives they don't get from the official NFL.com website. Limiting the richness of media available on these sites is more likely to alienate fans and journalists than to drive traffic to NFL.com. Just look where the Olympics is.

Sometimes rights to exclude are best left un-exercised. By contrast, the National Hockey League has taken a better course, striking deals with YouTube, Sling Media, and Joost to permit people to see hockey when and where they want. "We're not content fascists," Keith Ritter, president of NHL Interactive Cyber Enterprises, which represents the league's interests in new media, tells the LA Times. Perhaps it's time for the Houston Chronicle team to battle global warming and pick up hockey sticks!

Thanks Scott!

Posted by Wendy at July 02, 2007 01:09 AM | TrackBack
Comments

(As I am unable to post this comment on the correct entry, 2007/04/05/nfl_second_down_and_goal.html , I'm posting it here. I hope this is acceptable.)

What is the next step? According to 512(f), Emma Rutherford (the person who signed the NFL's 2nd DMCA notification) is liable for any damages Wendy Seltzer or YouTube suffered due to the removal of the clip if Ms. Rutherford "knowingly materially misrepresent"ed that the clip was "infringing".

Wendy claims that the 2nd DMCA notification contains such a material misrepresentation. I was not able to find a definition of "material misrepresentation" on the web, but Google Books came through, finding me the book: Rossini, C. (1998). English as a legal language. London: Kluwer Law International. , p. 31, which states: "In order for a misrepresentation to be material, ... it must be of such relevance that it would have influenced a (reasonable) person in the plaintiff's position with respect to any business dealings, or it must have been related to something which the defendant knew to be considered important by the plaintiff."

It's hard for me to see what, in the 2nd DMCA notification, would fall under that -- but I certainly may have missed it. Maybe "The NFLs copyrights are infringed by the above material" or "I have a good faith belief that none of the materials ... have been authorized by ... the law." -- but it's not clear who would have been "influenced" by the knowledge that those statements are false, even if they are false.

It does seem as though the law is written such that there is little penalty for sending repeated DMCA notifications, unless there is some other area that would create a large, easily provable tort for causing the removal of the clip.

Is it possible to send a counter-notification *before* a notification is sent, and ask for it to be kept on file? It doesn't seem so, as one of the requirements of the counter-notification is a statement of belief that the notification was in error, and one can't believe something is in error before it's said.

Hm. I suppose this is a general point about the lack of legal remedies for making false statements regarding ownership of copyrighted works, or the rights granted thereby.

References:

http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000512----000-.html
http://wendy.seltzer.org/media/NFLAntipiracy03_2007.03.12.txt

Posted by: Jesse Weinstein on August 1, 2007 06:58 PM


Posted by: paris on August 6, 2007 06:26 PM

thank you

Posted by: avsa adasi on August 8, 2007 05:43 PM
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