Gamecasts and Nba v. Motorola: Do They Still Love This Game?
| Publication year | 2003 |
For an avid sports fan, it is sometimes challenging to watch every important game while simultaneously keeping other commitments. Consider a law student who must choose between being prepared for class the following day and watching his or her favorite team. Listening to Dick Vitale rant and rave about the next "diaper dandy" while trying to learn the Rule Against Perpetuities is not easy. Fortunately, gamecasts1 now make it possible for a sports fan that is too busy to watch a game to keep up with sports action. For example, a law student can make the responsible decision to go to the library to study but will also be able to check the status of games via online gamecasts.
A gamecast is a real-time description of a sporting event broadcast over the Internet.2 An employee or law student may not have access to a television or radio in the office or law library, but most likely can get to a computer and, therefore, can access online gamecasts. There are gamecasts for all of the major sports, and gamecasts are available on a host of commercial websites. Thus, gamecasts are a viable option for keeping up with sports action.
Gamecasting is a relatively new means of communicating information and, as such, there are several unanswered legal questions associated with gamecasts. This Comment explores some of those questions. Part I discusses Major League Baseball's recent assertion that gamecasts are protectable as exhibitions of games. Part II looks at the relevant case law, specifically a case involving the National Basketball Association ("NBA") and pagers that delivered real-time information about ongoing games. Part III attempts to extrapolate how a case involving gamecasts might be resolved under the analysis from the NBA case. Part IV suggests a solution to the legal confusion surrounding gamecasts. Congress should add language to the Copyright Act specifically protecting gamecasts, much like the protection sports leagues have for radio and television broadcasts. The ultimate conclusion of this Comment is that while case law may allow sports associations to protect exclusive rights to gamecast, a better solution would be to bring gamecasts under the definition of broadcasts in the Copyright Act.
I. The Problem
Thorny legal issues surrounding gamecasting recently were brought to the forefront by Major League Baseball ("MLB"). Specifically, MLB asserted that it has exclusive rights to transmit real-time information about its games via the Internet.3 This information includes the score, position players, who (if anyone) is on base, the batter, the pitcher, the pitch count, and descriptions about each pitch and its result. MLB presents its own gamecasts, but many other sports websites, such as ESPN.com, also provide gamecasts of MLB games. Currently, these other websites do not have to pay a license fee to transmit their respective gamecasts; however, MLB seems ready to assert proprietary rights to the gamecasting of MLB games.4
MLB believes that anyone desiring to produce a gamecast should get its permission before doing so.5 Presumably, this permission would include paying a license fee or some other monetary accommodation.6 MLB believes it is entitled to this compensation because, in the words of Bob Bowman, CEO of MLB Advanced Media, "[i]f someone is communicating information about a game in real time, on a pitch-by-pitch basis, that's an exhibition of that game . . . . There's no difference, in our eyes, between exhibiting a game using text and graphics and doing it on radio or television."7 Indeed, it is not difficult to imagine a gamecast that provides even more information than television or radio broadcasts of games. For example, a baseball gamecast could provide information about the speed of batted balls or outfielder throws, something the television viewer or radio listener may not receive.8
During the MLB playoffs, gamecasts on MLB's website drew 750,000 users a day.9 Such data provides strong evidence that the average sports enthusiast views gamecasts as a viable alternative to TV or radio broadcasts, or at least preferable to waiting for results and highlights on ESPN's SportsCenter. It is easy to see why sports associations such as MLB are interested in protecting gamecasts. So why have MLB and other leagues not fought more aggressively for this protection? One answer is the Second Circuit's decision in National Basketball Association v. Motorola, Inc.10
II. The Law: NBA v. Motorola
A. Background
The controversy between the National Basketball Association ("NBA") and Motorola in NBA v. Motorola arose out of circumstances similar to MLB's current attempt to protect rights to gamecasts. Motorola manufactured the SportsTrax paging device and began marketing it in January 1996.11 The pager displayed information about NBA games that were in progress, including team names, score, possessions, number of fouls, quarter, and how much time was left in the quarter.12 The information was updated every two to three minutes, with a lag time of two or three minutes between the actual events and the corresponding display of information.13
The Sports Team Analysis and Tracking Systems company ("STATS") worked in conjunction with Motorola to produce the pagers. STATS provided the statistical information about the games in progress14 by watching the games on TV or listening to them on the radio.15 That information was then relayed over a network until it reached the individual pagers.16 STATS also maintained its own website that provided even more information and more frequent updates than the pager.17 The Second Circuit regarded the legal issues surrounding the pager and website as identical and indicated that its ruling applied with equal force to both.18
B. The Court's Analysis
On appeal,19 the Second Circuit discussed copyright law with respect to sporting events and reexamined the NBA's state law "hot-news" misappropriation claim in detail.20 The court began its analysis by reviewing the applicability of copyright law to sporting events and broadcasts of sporting events. Next, the court began a copyright preemption analysis, considering the NBA's "hot-news" misappropriation claim. Finally, the court analyzed the elements of the "hot-news" claim that survived preemption.
1. Copyright Law
With respect to copyright law, the court examined the NBA's ability to copyright its games.21 The court concluded that the basketball games did not meet the subject matter requirements for federal copyright protection because the games were not "original works of authorship" as required by the Copyright Act.22 The court distinguished the extensive preparation required to produce sporting events from the protectable underlying script of a play or movie.23 The court also recognized practical problems with allowing copyright in a sporting event, such as impairing fair competition24 and questions of copyright ownership.25
The Second Circuit also addressed the NBA's claim for copyright protection of the broadcast itself. The court recognized that these broadcasts were expressly copyrightable under the Copyright Act.26 The court, however, did not find that Motorola infringed on the NBA's copyright due to the fact that the pager only reproduced facts from broadcasts and not the expression of the broadcasts.27 The court described the protectable expression of a broadcast as the product resulting from the work of television cameramen and directors.28
2. Misappropriation
Once the court established that Motorola was not infringing the NBA's copyright, the court considered the state law "hot-news" misappropriation claim. "Hot-news" claims are based on International News Service v. Associated Press ("INS")29 In INS, one wire news service company copied factual news stories from another wire news service.30 The Supreme Court found that the offending news service committed common law misappropriation because the copied information was time-sensitive and the copier did not have to bear any expense in gathering the news stories.31 According to the Motorola court, the elements of a "hot-news" claim are
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.32
To resolve the "hot-news" claim, the court went through a copyright preemption analysis. A state law claim is preempted when the state law seeks to protect rights equivalent to those already protected by copyright law and when the work the state law applies to falls under the subject matter of copyright law.33 A preemption analysis thus has two distinct requirements: the general scope requirement and the subject matter requirement.34 The general scope requirement mandates that a state law claim seek to vindicate rights equivalent to the exclusive rights already protected by copyright law.35 If the state law claim offers substantively different protection than the protection under copyright law, then the state law claim is said to have an extra element, and the general scope requirement is not met.36 The subject matter requirement mandates that the work is a type of work that can be protected under the Copyright Act.37 If not, there is no preemption.
In its preemption analysis, the court held that "where the challenged copying or misappropriation relates in part to the copyrighted broadcasts of the games, the subject matter requirement is met as to both the broadcasts and the games."38 However, with respect to the general scope requirement of preemption, the court concluded that the...
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