Sports Law Meets IP Law
Before ever realizing my love for Sports Law, I was a tech nerd. I still am a tech nerd. But back in high school, I debated with the idea of getting into programming. I just could not live with the idea of sitting behind a computer 24 hours a day, yet I now find myself not being able to live with a laptop by my side and I am heavily entrenched in the world of sports. Funny how things work out.
Anyway, since starting law school, my appreciation for technology and intellectual property has increased. I am currently taking a course in Copyright Law that I love, and plan to take courses like Media Law, Cyber Law, and Intellectual Property Litigation before I graduate. If you think that Sports Law is devoid of IP issues, think again.
The Online Sports Guys picked up an article by the AP about Greg Gumbel suing Encore Television Group for using Gumbel’s taped introductions to endorse products that he never agreed to endorse. Gumbel had no idea that the intros would be used for infomercials. He claims that he was originally approached to film the intros for educational and news-oriented programming. This has more to do with the contract that was signed between the parties and the understandings surrounding the agreement, but it still deals with IP in a sense. It is more about Gumbel’s moral rights than his copyright to the material.
But then there is the story about the AP looking for revenue share from sites that use content from news organization without permission. This is certainly a Copyright Law issue and affects the sports world as well (ahem, sports bloggers). AP executives are concerned about sites that link to news articles, smaller sites that sometimes reproduce articles whole, and companies that sell packaged news feeds.
News aggregators and search companies have long asserted that collecting snippets of articles — usually headlines and a sentence or two — is allowed under the legal doctrine of “fair use.” News organizations have been reluctant to test that idea in court, and it is still not clear whether The A.P. is willing to test the fair use doctrine.
Let’s break it down into the three categories of sites that the A.P. is concerned about:
- Sites that link to news articles (i.e. Google, Yahoo) – A good case to look at is Perfect 10, Inc. v. Amazon.com Inc. (U.S. Ct. App 9th Cir. 2007). The court stated that providing HTML instructions isn’t the same as showing a copy. Google = HTML instructions. If a site like Google is to be held contributory liable for infringement, a court must find direct infringement by 3rd party first. There is contributory infringement if a site like Google intentionally induces or encourages direct infringement through specific acts or on distributing a product that infringe copyrights, if the product isn’t capable of “substantial” or “commercially significant” non-infringing uses. To be contributorily liable, a site like Google would need to have actual knowledge of infringing activity. If Google has knowledge of infringing material on its system and fails to purge material from the system when it can take simple measures to prevent further damage, Google contributes to direct infringement. So even if Google is linking to sites that may be violating the A.P.’s copyrights, the A.P. would need to show that Google could take simple measures to fix the issue (good luck!).
- Smaller sites that sometimes reproduce articles whole – If the smaller site gains anything from the complete copying of the articles, then it is infringement. The only way a smaller site can justify a fair use is if absolutely no money is made on the site, the information is necessary for the general public to consume, and the original work is still extremely valuable. Won’t hold up. But will the A.P. put its time, money, and energy into filing claims against these smaller sites?
- Companies that sell packaged news feeds – This is definitely the most interesting category and the hardest to pin down. News feeds are fairly new to the online market, and has rarely if ever been a part of any litigation. As with the sites that link to news articles, news feeds are HTML instructions, not actual copy. Thus, there is no direct infringement. We must look to whether there is a possibility of contributory infringement. Again, I think it will be a hard sell for the A.P. Companies that sell packaged news feeds have little control over whether one of the feeds directly infringes upon another’s copyright. If the A.P. can prove that a company has actual knowledge that one of its packaged news feeds is engaging in direct infringement, then maybe the A.P. has a case. But it is a tough burden for the A.P. to prove.
Fair use is a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner w/out his consent. #1 and #3 look like fair uses. #2 looks like egregious direct infringement, but infringement that may not be worth going to court over.