A new ox to gore

[PCM]

Brad Schlossman reports on the NCAA's new ban on live blogging.

The NCAA threw a reporter from the Louisville Courier-Journal out of the press box during the NCAA Super Regional baseball game this weekend for live blogging.

Before the game, the NCAA sent out a memo that said: "The College World Series Media Coordination staff along with the NCAA Broadcasting group needs to remind all media coordinators that any statistical or other live representation of the Super Regional games falls under the exclusive broadcasting and Internet rights granted to the NCAA's official rights holders and therefore is not allowed by any other entity. Since blogs are considered a live representation of the game, any blog that has action photos or game reports, including play-by-play, scores or any in-game updates, is specifically prohibited. In essence, no blog entries are permitted between the first pitch and final out in each game."

The Courier-Journal editors saw it differently and told their reporter to live blog. After all, he live blogged the previous weekend at the NCAA Regionals and nobody said a word. But on this day, during the fifth inning, his credential was removed and he was kicked out.

Having covered a couple of NCAA events as a member of the media, I know from firsthand experience that the association loves to issue rules and regulations designed to limit what reporters and broadcasters say and do.

The NCAA, of course, has good reason to protect the broadcast rights of the sporting events it sponsors, but the fanatical zeal this "non-profit" organization employs to guarantee that nobody sees, hears or reads anything without its approval is something to witness in action.

[PCM]

The irony of the Louisville Courier-Journal's story linked from Brad's blog is almost too much.

Courier-Journal executive editor Bennie L. Ivory challenged the NCAA's action last night and said the newspaper would consider an official response.

"It's clearly a First Amendment issue," Ivory said. "This is part of the evolution of how we present the news to our readers. It's what we did during the Orange Bowl. It's what we did during the NCAA basketball tournament. It's what we do."

This is a First Amendment issue? Why, I've been told many times by many people -- including members of the media -- that the NCAA can do whatever the heck it wants because it's a private association. When the NCAA says it will punish UND for using the Fighting Sioux nickname and logo, the media says the university should roll over. But the Courier-Journal's attorney says:

"It's a real question that we're being deprived of our right to report within the First Amendment from a public facility," said Jon L. Fleischaker, the newspaper's attorney.

"Once a player hits a home run, that's a fact. It's on TV. Everybody sees it. (The NCAA) can't copyright that fact. The blog wasn't a simulcast or a recreation of the game. It was an analysis."

The NCAA engages in "extortion and thuggery"? I guess there's a first time for everything.

During the middle of yesterday's game, Courier-Journal representatives were told by two members of the U.of.L athletic staff that if the school did not revoke Bennett's credential it would jeopardize the school's chances of hosting another NCAA baseball event.

"If that's true, that's nothing short of extortion and thuggery," Ivory said. "We will be talking to our attorneys (today) to see where we go from here."

Edited June 11, 2007 by PCM
I can't type

[jimdahl]

It's actually an interesting question.

All large sports entities (MLB, NFL, etc...) have necessarily worked very hard to control the distribution of their games. The majority of revenue comes from broadcast rights, not butts in seats. In the worst case scenario, a newspaper reporter sitting in the press box with a camera broadcasting the game live over the Internet would be very destructive to that business model. I don't think anyone would dispute that those entities are right in trying to prevent that.

It quickly becomes more subtle and less obvious. Those entities certainly license the ability to describe the game in real time over the radio; is licensing the right to sit in the press box and describe the game via Internet posts really that different? The ability to find out what's happening in a game by reading a play-by-play posted to a blog does diminish the value of the other licensed game broadcasts/representations. Therefore, for the same reason as above, shouldn't the owner of the game try to license and derive revenue from such descriptions?

If so, can a bunch of fans listening to a licensed Internet audio feed discuss the game via a publicly readable Internet message board? Someone who isn't monitoring the game via a licensed distribution mechanism might read those posts during the game, similarly having a negative effect on the value of the licensed distribution mechanism (albeit on a much smaller scale).

[sprig]

That is almost unbelievable. Would seem if one wanted to watch and had the means to watch the live NCAA event on TV, the last place they'd be would be sitting at at a PC refreshing a live blog to find out what's going on. Maybe the NCAA powers are too old to understand what this electronic stuff actually is. Ridiculous.

[siouxforeverbaby]

ok, if the NCAA has broadcasting and internet rights to their games, then wouldn't any newspaper or school website that put up a recap of the game or had a live score of the game up be able to be held liable for infringing on the NCAA's rights? Let's think about this because I agree with PCM in that the NCAA likes their rules but how much does this help their image and how will this look in court that they keep coming up with these things? if the judge thinks that this is a loony idea, could it help UND's battle against the NCAA?

[dagies]

If so, can a bunch of fans listening to a licensed Internet audio feed discuss the game via a publicly readable Internet message board? Someone who isn't monitoring the game via a licensed distribution mechanism might read those posts during the game, similarly having a negative effect on the value of the licensed distribution mechanism (albeit on a much smaller scale).

Or at the very end of the line, someone calls or texts a couple of friends with game updates. Those friends don't need to tune in either.

Where does all this change from unfairly using the information to it just being the changing landscape of information availability? I guess it's hard for me to say, but it seems like live blogging is not going too far.

[jimdahl]

ok, if the NCAA has broadcasting and internet rights to their games, then wouldn't any newspaper or school website that put up a recap of the game or had a live score of the game up be able to be held liable for infringing on the NCAA's rights?

You're right, but the big guys (MLB and NBA) have actually tried to do precisely that. Back in the early 90s, the NBA sued Motorola for sending live basketball scores to pagers, claiming the NBA owned the scores (the NBA lost). About a year ago, a case opened between MLB and some fantasy sports site over the site's unlicensed use of MLB stats (I'm not sure if that's concluded yet).

I'll let our IP attorneys chime in if they care to, but it's my understanding that the underlying issue in these cases is that you can't copyright a fact. That the UND game is currently 3-2 with a minute to go in the 3rd is a fact. Once you can't copyright it, do you have any legal grounds for controlling distribution of it?

Maybe not, but the NCAA certainly isn't a unique villain for trying. Regardless, they can certainly set whatever rules they want for issuing press passes; the irony may be that the outcome is simply that people with press passes can't live blog, while other people watching the game can.

[The Sicatoka]

Could the solution be somewhere in between, kind of like the policy here regarding quoting articles:

- An excerpt and a link: Fine.

- Copy/Paste the whole thing: Not Fine.

Put into this live game context:

- Full play-by-play blogging: Not Fine.

- Summaries of the on-going action: Fine

Examples?

Choice A:

Ramonez singled to left and advance to second on the bobble by the left fielder. Ramonez to third on the ground-out to second by Ramunez. Raminez flew out to center too shallow for Ramonez to score. Ramanez was struck out on three pitches to end the inning and leave Ramonez at third. End of seventh inning. : Not Fine.

Choice B:

Team R got a runner to third with one out a hit, an error, and a fielder's choice but couldn't plate the run. On to the eighth.

[Chewey]

The irony of the Louisville Courier-Journal's story linked from Brad's blog is almost too much.

This is a First Amendment issue? Why, I've been told many times by many people -- including members of the media -- that the NCAA can do whatever the heck it wants because it's a private association. When the NCAA says it will punish UND for using the Fighting Sioux nickname and logo, the media says the university should roll over. But the Courier-Journal's attorney says:

And the NCAA engaging in "extortion and thuggery"? I guess there's a first time for everything.

Hopefully, they have the balls to do something about it. The NC00 at work is a marvel to behold.

[PCM]

It's actually an interesting question.

Yes, it is.

All large sports entities (MLB, NFL, etc...) have necessarily worked very hard to control the distribution of their games. The majority of revenue comes from broadcast rights, not butts in seats.

Very true, but those organizations don't claim to be "non-profit" entities, as the NCAA does, for the puprose of receiving tax breaks. That's what I find so ironic about this. At the same time the NCAA portrays itself as not being interested in profit, it does everything it can to make sure that nobody makes a penny off the sporting events it sponsors.

In the worst case scenario, a newspaper reporter sitting in the press box with a camera broadcasting the game live over the Internet would be very destructive to that business model. I don't think anyone would dispute that those entities are right in trying to prevent that.

Agreed.

It quickly becomes more subtle and less obvious. Those entities certainly license the ability to describe the game in real time over the radio; is licensing the right to sit in the press box and describe the game via Internet posts really that different?

Yes, I think it is very different. The idea of a "live blog" is something of a misnomer to begin with. When radio or TV covers a game, the broadcasters have the power to describe events as they're unfolding. It's physically impossible for a blogger sitting in the press box watching the game to do that. Nobody I know that type fast enough to describe what's happening "live." It may be mere seconds after the fact, but it is always after the fact.

Any sports fan who has the option of listening to a live broadcast on the radio or watching it on TV isn't going to foresake radio or TV for a live blog. That's just silly. Therefore, treating a newspaper reporter's "live blogging" from the press box the same as someone broadcasting the game live without NCAA permission is patently absurd.

The ability to find out what's happening in a game by reading a play-by-play posted to a blog does diminish the value of the other licensed game broadcasts/representations.

I disagree. Unless someone can prove that they're being deprived of revenue because sports fans are forgoing radio and TV broadcasts in favor of live blogs, there is no reason to treat "live bloggers" the same as pirate broadcasters. There simply is no comparision.

If so, can a bunch of fans listening to a licensed Internet audio feed discuss the game via a publicly readable Internet message board? Someone who isn't monitoring the game via a licensed distribution mechanism might read those posts during the game, similarly having a negative effect on the value of the licensed distribution mechanism (albeit on a much smaller scale).

For the sake of SiouxSports.com, you shouldn't bring up that question. Otherwise, the NCAA might be knocking on your door soon.

[Chewey]

I do exclusively bankruptcy. I don't have a clue about IP stuff. Where's ScottM when you need him?

[jimdahl]

For those who love this sort of thing (surely I'm not the only one), here is what the 2nd Circuit Court of Appeals had to say about

The National Basketball Association v. Motorola

The excerpts below are the portions that cover a lot of talking points from this thread so far.

Although the broadcasts are protected under copyright law, the district court correctly held that Motorola and STATS did not infringe NBA's copyright because they reproduced only facts from the broadcasts, not the expression or description of the game that constitutes the broadcast.

...

We agree with the district court that the "[d]efendants provide purely factual information which any patron of an NBA game could acquire from the arena without any involvement from the director, cameramen, or others who contribute to the originality of a broadcast." 939 F. Supp. at 1094. Because the SportsTrax device and AOL site reproduce only factual information culled from the broadcasts and none of the copyrightable expression of the games, appellants did not infringe the copyright of the broadcasts.

...

As framed by the NBA, their claim compresses and confuses three different informational products. The first product is generating the information by playing the games; the second product is transmitting live, full descriptions of those games; and the third product is collecting and retransmitting strictly factual information about the games. The first and second products are the NBA's primary business: producing basketball games for live attendance and licensing copyrighted broadcasts of those games. The collection and retransmission of strictly factual material about the games is a different product: e.g., box-scores in newspapers, summaries of statistics on television sports news, and real-time facts to be transmitted to pagers. In our view, the NBA has failed to show any competitive effect whatsoever from SportsTrax on the first and second products and a lack of any free-riding by SportsTrax on the third.

With regard to the NBA's primary products -- producing basketball games with live attendance and licensing copyrighted broadcasts of those games -- there is no evidence that anyone regards SportsTrax or the AOL site as a substitute for attending NBA games or watching them on television. In fact, Motorola markets SportsTrax as being designed "for those times when you cannot be at the arena, watch the game on TV, or listen to the radio . . ."

The NBA argues that the pager market is also relevant to a "hot-news" INS-type claim and that SportsTrax's future competition with Gamestats satisfies any missing element. We agree that there is a separate market for the real-time transmission of factual information to pagers or similar devices, such as STATS's AOL site. However, we disagree that SportsTrax is in any sense free-riding off Gamestats.

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.

[PCM]

With regard to the NBA's primary products -- producing basketball games with live attendance and licensing copyrighted broadcasts of those games -- there is no evidence that anyone regards SportsTrax or the AOL site as a substitute for attending NBA games or watching them on television. In fact, Motorola markets SportsTrax as being designed "for those times when you cannot be at the arena, watch the game on TV, or listen to the radio . . ."

This goes to the point I made above. Nobody is being deprived of revenue from sports fans who can't attend games or watch them or listen to them via live broadcasts.

[HockeyMom]

So do I understand this correctly?

We are listening to TH broadcast a hockey game, and we can post what is going on via SiouxSports, but if PCM is sitting in the pressbox he can't post anything that's going on?

[PCM]

So do I understand this correctly?

We are listening to TH broadcast a hockey game, and we can post what is going on via SiouxSports, but if PCM is sitting in the pressbox he can't post anything that's going on?

If I attended an NCAA-sponsored championship event as a member of the media, I would be prohibited from posting a "live blog" about a game in progress. Anyone watching the same game on TV or listening to it on the radio could post "almost live" updates and the NCAA could do nothing about it.

[dagies]

If I attended an NCAA-sponsored championship event as a member of the media, I would be prohibited from posting a "live blog" about a game in progress. Anyone watching the same game on TV or listening to it on the radio could post "almost live" updates and the NCAA could do nothing about it.

Which would be good, because then you could monitor the Sioux Sports game threads from the press box and you'd know what's going on.

[PCM]

Which would be good, because then you could monitor the Sioux Sports game threads from the press box and you'd know what's going on.

Exactly. I'd be just like Dave Hakstol.

[Diggler]

Exactly. I'd be just like Dave Hakstol.

Only smile less.

[The Sicatoka]

Where's the classic line, "This is only for NCAA championships; you can do whatever you want for your other games. We control championships and what goes on there" line from the home office in Indianapolis, Indiana? I'm just giddy waiting to hear that one.

[PCM]

The NCAA's own blogger, Josh Centor of the Double-A Zone, disagrees with the association's position on live blogging.

[Diggler]

Well he better disagree or he'd be the biggest sham/lapdog ever.

[Goon]

The NCAA's own blogger, Josh Centor of the Double-A Zone, disagrees with the association's position on live blogging.

I am sure he will be taking to the wood shed soon for that one.

[Goon]

Well he better disagree or he'd be the biggest sham/lapdog ever.

Up until this time I thought he was already.

[HockeyMom]

If I attended an NCAA-sponsored championship event as a member of the media, I would be prohibited from posting a "live blog" about a game in progress. Anyone watching the same game on TV or listening to it on the radio could post "almost live" updates and the NCAA could do nothing about it.

Well that's a relief, what would we have done if we had to lose the game threads on here? Rather, what would I have done?

[PCM]

Well that's a relief, what would we have done if we had to lose the game threads on here? Rather, what would I have done?

The NCAA is going after the "live bloggers" sitting in the press box because they are the easy targets. If you've ever had to deal with NCAA officials at an NCAA-sponsored athletic event, you'd know that they live to create rules and exert their authority to enforce them. It's what they do. It's how they feel important and in control.

When I was UND's photographer at the 2000 Frozen Four in Providence, the NCAA insisted that each photographer wear a bright yellow arm band. Why? So they could see where you were at all times and yank you back into line if you were violating the rules. We also had to wear our NCAA-issued credentials at all times while in the arena, but that wasn't enough.

After a while, it became obvious that those in charge of enforcing the rules didn't even know what the rules were. For example, we were told that we could only shoot photos from a few specifically designated areas in the arena. However, only one of those areas was any good for photography (great planning, NCAA). So all the photographers crammed themselves into that one area because it was the only decent vantage point of the ice.

An NCAA official showed up at the start of the championship game and told us there were too many photographers in that area and that we'd have to split up. So I moved to a designated area on the other side of the arena. When I got there, it was jammed with spectators standing around watching the game. As I started setting up to shoot photos, an NCAA official came up to me and said that I'd have to move because I was blocking peoples' view. Although there were dozens of people blocking the view, I was the one singled out and told to move because I was wearing press credentials.

So while I trudged back to the other side of the arena, Mike Commodore scored UND's first goal and I was in no position to capture it on film. I set up to shoot in another designated area, but there were so many spectators and so much glass between me and the action, it was impossible to get any decent shots. I moved back to the area where I started. Once again, an NCAA official showed up and said there were too many photographers in that area.

Finally, I moved up to the press area near the press box and shot photos from there. It was too far away, but at least I had a good view of the ice. I've had a soft spot in my heart for the NCAA ever since.