At 11:53 AM -0500 12/3/03, Chris Sprigman wrote:
>David's comment raises an interesting point. A
>baseball game is, as David suggests, likely not a work
>of authorship. The work entitled to protection is in
>the "telecast" -- i.e., the game plus the associated
>commentary, graphic images, etc. So long as an
>internet gamecast doesn't use protected elements of
>the telecast, but instead transmits only facts about
>the underlying (unprotectible) game, MLB shouldn't
>have a copyright claim. And by this reasoning, it
>follows that MLB shouldn't be able to prevent, through
>a copyright lawsuit, a local independent television
>station from setting up a TV camera on one of the
>roofs overlooking Wrigley field and broadcasting the
>Cubs game with its own commentary.
The case below is closest to the point. It suggests that there is no copyright protection or "hot news" cause of action to stop an independent broadcast of a public performance, whether by a local television station or your hand-held cell-cam. But admission to the venue is by agreement (see the small print on the ticket). Wrigley Field is pretty unique.
John Noble
THE NATIONAL BASKETBALL ASSOCIATION and NBA PROPERTIES, INC. v. MOTOROLA, INC. (2d Cir. 1997):
Motorola, Inc. and Sports Team Analysis and Tracking Systems ("STATS") appeal from a permanent injunction entered by Judge Preska. The injunction concerns a handheld pager sold by Motorola and marketed under the name "SportsTrax," which displays updated information of professional basketball games in progress. The injunction prohibits appellants, absent authorization from the National Basketball Association and NBA Properties, Inc. (collectively the "NBA"), from transmitting scores or other data about NBA games in progress via the pagers, STATS's site on America On-Line's computer dial-up service, or "any equivalent means."
The crux of the dispute concerns the extent to which a state law "hot-news" misappropriation claim based on International News Service v. Associated Press, 248 U.S. 215 (1918) ("INS"), survives preemption by the federal Copyright Act and whether the NBA's claim fits within the surviving INS-type claims. We hold that a narrow "hot-news" exception does survive preemption. However, we also hold that appellants' transmission of "real-time" NBA game scores and information tabulated from television and radio broadcasts of games in progress does not constitute a misappropriation of "hot news" that is the property of the NBA.
Because our disposition of the state law misappropriation claim rests in large part on preemption by the Copyright Act, our discussion necessarily goes beyond the elements of a misappropriation claim under New York law, and a summary of our ruling here will perhaps render that discussion -- or at least the need for it -- more understandable.
The issues before us are ones that have arisen in various forms over the course of this century as technology has steadily increased the speed and quantity of information transmission. Today, individuals at home, at work, or elsewhere, can use a computer, pager, or other device to obtain highly selective kinds of information virtually at will. International News Service v. Associated Press, 248 U.S. 215 (1918) ("INS") was one of the first cases to address the issues raised by these technological advances, although the technology involved in that case was primitive by contemporary standards. INS involved two wire services, the Associated Press ("AP") and International News Service ("INS"), that transmitted newsstories by wire to member newspapers. Id. INS would lift factual stories from AP bulletins and send them by wire to INS papers. Id. at 231. INS would also take factual stories from east coast AP papers and wire them to INS papers on the west coast that had yet to publish because of time differentials. Id. at 238. The Supreme Court held that INS's conduct was a common-law misappropriation of AP's property. Id. at 242.
With the advance of technology, radio stations began "live" broadcasts of events such as baseball games and operas, and various entrepreneurs began to use the transmissions of others in one way or another for their own profit. In response, New York courts created a body of misappropriation law, loosely based on INS, that sought to apply ethical standards to the use by one party of another's transmissions of events.
Federal copyright law played little active role in this area until 1976. Before then, it appears to have been the general understanding -- there being no caselaw of consequence -- that live events such as baseball games were not copyrightable. Moreover, doubt existed even as to whether a recorded broadcast or videotape of such an event was copyrightable. In 1976, however, Congress passed legislation expressly affording copyright protection to simultaneously-recorded broadcasts of live performances such as sports events. See 17 U.S.C. § 101. Such protection was not extended to the underlying events.
The 1976 amendments also contained provisions preempting state law claims that enforced rights "equivalent" to exclusive copyright protections when the work to which the state claim was being applied fell within the area of copyright protection. See 17 U.S.C. § 301. Based on legislative history of the 1976 amendments, it is generally agreed that a "hot-news" INS-like claim survives preemption. H.R. No. 94-1476 at 132 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5748. However, much of New York misappropriation law after INS goes well beyond "hot-news" claims and is preempted.
We hold that the surviving "hot-news" INS-like claim is limited to cases where: (i) a plaintiff generates or gathers information at a cost; (ii) the information is time-sensitive; (iii) a defendant's use of the information constitutes free-riding on the plaintiff's efforts; (iv) the defendant is in direct competition with a product or service offered by the plaintiffs; and (v) the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened. We conclude that SportsTrax does not meet that test.
John Noble
>
>--- David Post <Postd[_at_]erols.com> wrote:
> > At 08:35 PM 11/30/2003 Sunday -0500, you wrote:
>> >Interesting article in Wired, at this link:
>> >
>>
>>http://www.wired.com/news/games/0,2101,61119,00.html
>> >
>> >In my opinion, the following statement by MLB is
>> just plain wrong:
>> >
>> >"'If someone is communicating information about a
>> game in real time, on a
>> >pitch-by-pitch basis, that's an exhibition of that
>> game," said Bob Bowman,
>> >the CEO of MLB Advanced Media. "There's no
>> difference, in our eyes, between
>> >exhibiting a game using text and graphics and doing
>> it on radio or
>> >television."
>> >
>> >"Using that argument, MLB says that it is entitled
>> to a license fee, or that
>> >some other accommodation needs to be reached
>> regarding gamecasts. What it is
>> >sure of is that anyone doing a gamecast needs to
>> secure the rights to do so
>> >from MLB."
>> >
>> >Any other opinions?
>> >
>> >Thanks,
>>
> > I agree (with the 'just plain wrong' part). The
> > game's not a work of
>> authorship -- see the NBA case that Terry Carroll
>> referred to (though
>> there's an earlier, and badly written/reasoned, 7th
>> Cir. case somewhat to
>> the contrary: Baltimore Orioles, Inc. v. Major
>> League Baseball Players
>> Association, 805 F.2d 663 (7th Cir. 1986)). So
>> maybe Bowman is correct
>> after all: there's no difference between exhibiting
>> a game using text and
>> exhibiting it on radio or TV; neither requires a
>> license fee (absent some
>> contractual restriction .
>> David
>>
>> ************************************
>> David G. Post
>> Professor, Temple University Law School and Senior
>> Fellow, The Tech Center,
>> George Mason Univ. Law School
> > http://www.temple.edu/lawschool/dpost/writings.html
Received on Thu Dec 04 2003 - 02:11:48 GMT
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