Responding to a storm of criticism, the 12-university Southeastern Conference was forced to back away from proposed rules which would have prohibited fans from blogging, Twittering, instant messaging, or otherwise disseminating "any material or information about [its sports competitions], including, but not limited to, any account, description, picture, video, audio, reproduction or other information concerning the Event."
In response to the criticism, the Conference quickly came up with a new policy under which "Personal messages and updates of scores or other brief descriptions of the competition throughout the Event are acceptable," but "Absent the prior written permission of the Southeastern Conference, game action videos of the Event may not be taken . . . ."
(The SEC also issued a revised media credentialing policy in the face of protests from professional media over a new policy restricting their use of video, audio and blogging, but still drew objections and refusals to agree to the new rules.)
As several sports columnists have pointed out, the goal of the new rules is clear: to protect the SEC's 15-year contracts with CBS ($3 billion) and ESPN ($2.5 billion), which include rights to video of SEC games for broadcast and online streaming, as well as the conference's own new, online video service. "The intent of the revised policy is not to inhibit social media inside our stadiums with the exception of trying to protect our video rights as they pertain to our television and media partners," SEC spokesman Charles Bloom said in an interview with the Buzz Manager sports blog. "Someone in the stadium can enter Twitter feeds or Facebook entries and photographs, but the game footage video is something we will try to protect."
Sports entities have a mixed record in court trying to enforce restrictions on dissemination of information about their events. As the Neiman Reporting Lab recently summarized the history of such conflicts, there has been "[n]o consistent winner in the turf wars between sports leagues and news organizations."
In N.B.A. v. Motorola, 105 F.3d 841 (2nd Cir. 1997), the 2d Circuit Court of Appeals held that Motorola's transmission to its pagers of "real-time" NBA game scores and information from observers monitoring live television and radio broadcasts of NBA games did not violate the league's rights. The court also held that the games themselves were not copyrightable (since they were not fixed in a tangible medium) and that the Motorola's score service did not violate the copyright in the broadcasts of the games:
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.105 F.3d at 847.
But in Morris Communications, Inc. v. PGA Tour, 364 F.3d 1288 (11th Cir. 2004), reh'g denied, 107 Fed.Appx. 890 (11th Cir. May 28, 2004), cert. denied, 543 U.S. 919 (2004), the 11th Circuit Court of Appeals held that the PGA had a legitimate business reason for requiring media entities to license — for a fee — information from its real-time scoring system, and thus did not violate antitrust law:
Morris demands that it be given access to the product of PGA's proprietary RTSS [Real-Time Scoring System], without compensating PGA, so that Morris can then sell that product to others for a fee. That is the classic example of "free-riding," the prevention of which, under antitrust law, constitutes a legitimate pro-competitive reason for imposing a restriction.364 F.3d at 1298.
In 2007 the NCAA got into a spat with a Louisville (Ky.) Courier-Journal reporter who was blogging from games. The NCAA then clarified that live updates could include only scores and time remaining. Although legal action was threatened, none was taken. The International Olympic Committee had similar dust-ups over blogging by athletes and others at the 2008 Beijing games, and the upcoming 2010 games in Vancouver. Finally, in December, the Wisconsin Interscholastic Athletic Association sued the Appleton, Wis. Post-Crescent and the state's newspaper association over the newspaper's webcast of a high school football playoff game. And there have been other recent disputes.
While the law on restrictions on dissemination of sports information by fans remains murky, it's foolish for leagues and teams to try to impose draconian restrictions on their customers, the fans. As the SEC spokesman stated, a bit belatedly,
"I see social media as a way that our fans can be engaged and share the positive word of what goes on in our universities and our stadiums. We talk about the environment around our games and that it's an experience, not just a football game and so I think if we have fans in our stands that tweet, and enter Facebook entries, and a take pictures and show everyone having a great time whether it's tailgating or the scenery around stadium I think that's a positive that we can use to get the word out about the atmosphere of our ball games."
That's a positive attitude towards social networking that we all can cheer for.
