With the Super Bowl just concluded and baseball's spring training only weeks away, a question occurred to us: whatever happened to the push for copyright holders to tone down their copyright notices?
We hear and see the warnings whenever a football or baseball game is televised, whenever we read books, whenever we watch a movie. These are the sort of warnings that make claims like, "Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL's consent is prohibited," despite the apparent wrongheadedness of the statement.
Should copyright holders be held more accountable for inaccurate warnings? In 2007, two different efforts to provoke change on the issue tried to force the issue. Both ended without success, even as courts have cracked down on some of the worst copyright overreaching by the leagues.
Asking the government to act
In 2007, the Computer and Communications Industry Association decided to stir the pot a bit on such copyright notices. CCIA's in-house lawyer Matt Schruers drafted a complaint and
sent it along to the Federal Trade Commission, arguing that over-broad copyright warnings violated Section 5 of the FTC Act by "misrepresenting consumers' rights to use copyrighted works and by threatening sanctions for lawful uses of those copyrighted works."
Groups representing 139,000 US libraries
soon supported the complaint.
Those paid by big copyright holders to argue for their positions found CCIA's complaint unfounded. Patrick Ross, who heads the Copyright Alliance, went to the CCIA press conference announcing the complaint. His
response: "CCIA President Ed Black ridiculed a number of copyright warnings—you know the type, they say unauthorized use could result in fines or jail. Ed says the warnings don’t stipulate fair use. Well, using the word 'unauthorized' would seem to address that, because fair use under Sec. 107 of the Copyright Act would be authorized."
This argument is true only in the broadest sense: that fair use is indeed written into copyright law. But fair use does not "authorize" particular uses of works and can only be decided on an after-the-fact basis by a judge. No permission in advance is even
possible on fair use; the best one can get is good advice from a lawyer.
As the Copyright Office itself
states, "the distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission... The Copyright Office can neither determine if a certain use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney."
More important, however, this argument doesn't even apply to some of the most common copyright notices. It applies to the "FBI warning" found on many movies, but the NFL's own notice is unambiguous: "This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL's consent is prohibited."
Baseball is just as clear: "This copyrighted telecast is presented by authority of the Office of the Commissioner of Baseball. It may not be reproduced or retransmitted in any form, and the accounts and descriptions of this game may not be disseminated, without express written consent."
Both are quite obviously ridiculous—descriptions of baseball and football games may in fact be disseminated without written consent (and are every day around the water cooler and in newspapers and
in Wikipedia).
And the less said about books, the better; many say things like, "no part of this publication may be reproduced or transmitted in any form or in any means... without permission in writing from the publisher." Again, not true.
While plenty of sites, including Ars, covered the CCIA complaint, it never went anywhere. What happened to it? We checked in with Schruers, who still works for CCIA, and he passed along the FTC's
response from December 6, 2007.
In a six-page letter, the FTC declined to move forward on an investigation because it determined that the omissions in such warnings were not "material to consumers." (In comparison, Sony BMG's misguided decision to slap rootkit-style DRM on audio CDs and then
not tell consumers was material, and it did result in an FTC consent order.)
In the agency's view, no one would see such warnings and actually believe them as complete statements of their own rights. "We do not have a sufficient basis to conclude that consumers would view those brief warnings as complete statements of their rights with respect to the works," the letter said.
Still, there was some comfort to CCIA. While FTC declined to act, they did "encourage" copyright owners to "be accurate in their characterizations of their rights." If they post misleading information for too long, Bad Things could happen:
"If consumers routinely confront exaggerated and inaccurate copyright warnings they may tend to disregard them altogether, to the detriment of consumers and copyright owners alike."
Our copyright notice is copyrighted
After watching the 2007 Super Bowl, legal professor Wendy Seltzer uploaded to YouTube a 33-second clip of the game's copyright notice, followed by a few moments of onscreen action. (Well, not "action," really; the Colts were preparing to kick off.)
Super Bowl copyright notice
It was Seltzer's first YouTube posting ever, and she did it to make a point. "I snipped the copyright warning out of the weekend’s Super Bowl broadcast as an example for my copyright class of how far copyright claimants exaggerate their rights," she
wrote on her blog at the time. Would the NFL order the clip taken down?
Yes, it would—twice. Five days later, YouTube notified Seltzer that the video had been targeted by a Digital Millenium Copyright Act (DMCA) takedown notice from the NFL. If she did nothing, the video would remain down, though she could also choose to file a "counter-notice" swearing a "good faith belief" that the takedown was in error.
Seltzer filed the counter-notice, and YouTube put the video up within the 10-14 day "putback" period in the law. At this point, YouTube had done its legal duty and was now immunized in the dispute. If the NFL wanted to continue the matter, it could take Seltzer to court, but it could not hold YouTube liable for the video.
Instead, on March 18, the NFL sent another takedown notice to YouTube. Seltzer said that "sending a second notification that fails to acknowledge the fair use claims [made in her first counter-notice] instead puts NFL into the 512(f)(1) category of 'knowingly materially misrepresent[ing] … that material or activity is infringing.'" And that would open the door for Seltzer to sue the NFL for filing improper DMCA takedowns.
Instead, Seltzer just filed a second counter-notice. A couple weeks later, YouTube restored the video and no more was heard of the incident.
I checked in with Seltzer this week to see what, if anything, had happened. She tells me that after the second counter-notice, the NFL never sued her and never sent another takedown notice; the clip remains available on YouTube today. As for her own implicit threat to sue the NFL, Seltzer didn't act on it. "I probably would have if they had pulled the video again," she adds.
Seltzer says that the incident was an educational one, and it led her to post similar copyright notices from Major League Baseball games; no takedown letters were forthcoming from MLB, however.
Changes on the ground
Attempts to alter these copyright claims have yet to produce real change, but the sports leagues have been forced to alter some of their behavior relating to copyright. Major League Baseball, for instance, has long claimed that fantasy sports leagues must take out a license in order to use real player names and stats—despite the "fact" that facts aren't copyrightable.
A St. Louis company, CBC Distribution and Marketing, refused to do so and
ran some Internet fantasy sports games using real MLB data. Baseball sued, and lost in 2006 at the District Court level. In 2007, baseball lost at the Appeals Court level. In 2008, the Supreme Court refused to hear a further appeal, and CBC was vindicated.
The news was big enough to inspire a
New York Times op-ed, in which the paper said, "In recent years, corporations have been aggressively pushing the bounds of intellectual property—extending the length of copyrights to unreasonable lengths, for example, and patenting seeds. In the case of fantasy baseball, the courts have rightly cried foul. The biggest fantasy in this case was Major League Baseball’s claim that its fans should pay to talk about the game."
That decision was bolstered by a 2009 ruling in which broadcaster CBS brought a similar lawsuit against the NFL Players' Association. The judge in that case
agreed with the earlier CBC ruling and concluded that such facts were in the public domain.
And the NFL's decision to go after churches for offering Super Bowl broadcasts on big-screen TVs generated so much bad press that Congress even threatened to step in. Sen. Arlen Specter (R-PA, now D-PA) introduced S. 2591, a bill which singled out "professional football contests" and allowed nonprofit groups to show the games on any size screen.
The bill went nowhere, but the NFL did call an audible. In late 2008, the league announced that it was changing its ways and would no longer go after churches simply for
using a 55+ inch screen.
Baseball and football both remain tenacious about defending their copyrights and trademarks, but they have to do so within an increasingly IP-savvy environment. People care about such issues more than they did a decade ago, and when they think the NFL is overreaching, the public outcry can be deafening.
When the NFL cracked down on sales of "Who Dat" merchandise before the most recent Super Bowl, fans couldn't believe that the league was trying to horn in on their catchphrase. But, in this new media environment, the NFL also has some tools at its disposal. In this case, the league
took to its own blog to explain that the NFL only cared about the phrase when it was used in conjunction with official Saints logos or other NFL trademarks.
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