As regular readers of this blog know, I'm a college basketball junkie. As far as I'm concerned, the NBA is just a giant methadone program to easy me into the summer, when there aren't any sports worth watching on tv. I'm a big fan of NCAA basketball, but I'm starting to think about how I can manage to watch it without funneling any money to the NCAA, who become more loathesome with every passing day.
The latest incident involves the ejection of a credentialed reporter for reporting on the game on his paper's blog:
Should the National Collegiate Athletic Association be able to demand that someone leave an athletic event at a public university for blogging during a game?
The NCAA thinks it can -- and that it can use universities as its enforcers. On Friday, the association did just that when the University of Louisville, acting on NCAA orders, evicted a credentialed reporter for The Louisville Courier-Journal from a baseball playoff game for doing his job. According to the NCAA, it would be fine for the reporter to write online about the atmosphere of a game, the mood of the fans, even the quality of the hot dogs in the stands. But mention that someone just hit a home run -- information the NCAA wants to preserve for those that pay to broadcast games -- and the reporter is outta there.
The logic here is that ESPN has paid big bucks for the exclusive broadcast rights to the game, so nobody else can be allowed to talk about it while the game is going on. This was explained by an NCAA spokesman wearing a suit made from the skins of cute, fuzzy puppies as he crushed the skulls of helpless baby kittens. Well, not really, but it's about the only way they could make their position less appealing.
Yes, I know, the NCAA is a private organization, and thus not subject to the same level of scrutiny as the government when it comes to free speech. And this might conceivably fall into the same legal category as things like trademark protection, which is a sucking swamp of nonsensical and obnoxious decisions. But, really, this is ridiculous.
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I've seen this story pop up a few times over the past couple of days, and I can't believe how ridiculous it is. During a basketball game, even if ESPN shelled out money for it, another network can (and does) report the score, and sometimes describe some of the plays, even while the game is in progress. Press at games routinely do little 'live updates' for their network while games are in progress.
I think they are trying to say the liveblogging is somehow 'retransmission' of the game, and you would have to be a moron to say that.
You seem to be laboring under the misimpression that college athletic events are "sports" when in fact they are a business.
I posted the following over at the place where the story was reported, but it's not showing, so I'll post here too.
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A very similar issue came up 10 years ago, when the NBA attempted to prevent companies from selling sports pagers, which were simply devices pushing out up to the minute sports scores to subscribers. Obviously, the NBA wanted to monopolize that distribution channel if they could. The NBA lost. See NBA v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997). The NBA was hoping that the court would adhere to something called the "hot news misappropriation" doctrine, whose purpose is to prevent competitors from republishing news stories as their own, because the practice amounts to unfair competition. See Int'l News Serv. v. AP, 248 U.S. 215 (U.S. 1918).
The Second Circuit made a distinction between 'hot news' and the type of information delivered by sports pagers. Because sports pagers delivered merely factual information, it ruled that copyright law (which disallows facts or ideas to be copyrighted) preempted the state misappropriation law. To grossly simplify a difficult concept, if a state law prohibiting certain activities clashes with federal copyright law, the copyright law trumps.
So there are two issues here: (1) What effect does the NBA v. Motorola decision have in the the Sixth Circuit (where Louisville is located); and (2) If followed, would the Sixth Circuit be able to distinguish this situation from NBA v. Motorola.
As to the first question, the Sixth Circuit isn't bound by Second Circuit decisions. That said, NBA v. Motorola has been followed in most other federal circuits. Its reasoning is entirely sound.
As to the second question, if the Sixth Circuit followed NBA v. Motorola, it would likely reject the NCAA's argument that the blogger was misappropriating "hot news." The Second Circuit limited the hot news doctrine 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.
The NCAA would only be able to plausibly argue points (i) and (ii) above. While the NCAA does stage games at a considerable cost, and while the information reported is inherently time-sensitive (all sports reporting is), reporting is not typically depicted as free-riding for free-speech and free-press reasons. Additionally, bloggers are not in direct competition with the NCAA, even if the NCAA or its subsidiaries did report on the games themselves through similar outlets. Perhaps most importantly, the fifth prong above isn't present here--it's patently ridiculous to think that the NCAA's incentive to exist and schedule basketball games is substantially threatened by someone live-blogging a game.
Even if the Sixth Circuit court declines to follow NBA v. Motorola, it's likely that they'd come to the same result via a different route, as the 'hot news' doctrine would still need to be confronted, and such a confrontation disfavors the NCAA.
In reality, it's unlikely it ever gets to court. I suspect the NCAA will come to its senses and avoid the embarrassment of losing such a case in court.
Good points Scott, but the the only item in question would be (iii). On (iv) and (v), the blogger is in competition with the web-based delivery of the game via the Gametracker java visualization of the game by a CBS web affiliate. It could be plausibly argued that someone texting or blogging (or dictating over a cell phone) the scoring of the game (player X is out 6 to 3) competes with that service. I don't thing the blog in question comes close, however, because he was providing commentary that was not on the web, but that might not be the view of the law.
Because the blogger was a member of the press, who get in the game for free, a case could be made for (iii). How different that is from a cell-phone play-by-play from a person watching the game for free from the top of a car outside the park, or a patron at the game, is where the legal game would begin, and some of those other activities might also be in violation of the NCAA media contract if broadcast in real time on the web.
A similar event happened to a popular track and field website trackshark.com. They taped interviews and posted images from the mideast track and field regional. The NCAA sent the owner of the site a letter asking him to take them down. The funniest part of this story is that this event was not televised. He was providing the event free publicity and considerably better results and images than the official ncaa site. The last thing the NCAA wants is someone to actually want to follow one of the nonrevenue sports.
The narrowing of the 'hot news' doctrine as stated by Second Circuit essentially limited the doctrine to cases like International News Service, where a second comer was *literally copying* the content of otherwise uncopyrightable factual information. There is no literal copying here at all, only a reporter reporting uncopyrightable facts based on his direct observation. The doctrine *might* apply if the reporter were blogging information gained *from* a Gametracker-like NCAA-affiliate produced web/software, but even there, it probably wouldn't apply unless he were passing off the information as his own, and somehow harming the market for the Gametracker. The free rider the third prong seeks to identify is the direct competitor making no effort to gather the information on his/her own, not a reporter literally reporting from the event.
As for the 5th prong, the bar is incredibly high and live-blogging comes nowhere near it. In order for a court to take the NCAA's argument seriously, the reporter's use of the information (liveblogging) would have to actually reduce the incentive for whomever the NCAA licenses to even bother continuing to produce a Gametracker-like service. As in, "why should we even bother putting out these services if bloggers will also provide it?" That's not an argument the NCAA could even make with a straight face.
"Free rider" as used by the court in this context is a legal term of art, and has absolutely nothing to do with whether the reporter paid to get into the event.
All this is is yet more overreaching by a huge entertainment company premised on the often-correct belief that the pushed-around party won't fight back. There is no plausible argument if the court were to follow the NBA v. Motorola opinion, which most circuit courts have. But even if the court declined to follow the Second circuit, there would be additional bases under which to beat down the NCAA's argument, namely the speech and press clauses of the first amendment. There's also a lurking antitrust argument. But courts don't like reaching constitutional if they don't have to, and it's more likely that the Sixth Circuit, if they were to not follow NBA v. Motorola, would fashion its own limitation on International News Services' hot news doctrine similar to the Second's, because the results reached under a permissive and broad reading of International News Service, permitting the NCAA to act as it has, would cause a great deal of havoc.