Last Updated: May 20, 1999
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Online
sports
Teams, officials, events are shutting out or restricting
real-time online sports operations — some of which are affiliated with
newspapers
Sorry, but there couldn’t have been a repeat of 1980’s "Miracle on Ice"
in this year’s Winter Olympics. That’s because the Miracle on Ice was more
than just the U.S. Olympic hockey team winning the gold medal in Lake Placid,
N.Y., against the Soviets. It was a legend that built as America watched
it unfold firsthand, counting down until the victories were finally secure.
Unfortunately, the history made in Nagano, Japan, could not have affected
us the same way. These Games occurred halfway around the world in the middle
of the night our time, and were shown — tape-delayed — only when CBS said
we could watch them. But watching a game when you already know the result
isn’t the same. Sports fans know that you have to experience it as it happens.
There is another outlet for the sports junkie to receive instant updates
on sporting events as they progress, though — the Internet. Online publications
can cheaply and quickly deliver updates, often accompanied by photos, of
any sporting event in progress. Technological advances are allowing, with
increasing clarity, video images and audio clips that put the user right
in the arena. However, the Nagano Olympic Organizing Committee, which allocated
accreditations to each participating nation’s Olympic committee for distribution,
said it didn’t know of any online journalists accredited for the Nagano
Games.
Not the first time
This represents at least the fourth major sporting event in the past
year at which the ability of newspapers to report sports in real-time has
been severely impaired:
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The Augusta Chronicle wanted to provide real-time score updates from The
Masters golf tournament on its Web site. However, Augusta National Country
Club, the tournament’s home, conditioned reporter’s credentials on their
agreement not to report scores in real time so that the interests of IBM,
a tournament sponsor, would be protected. And since cellular telephones
were not allowed on the grounds during the tournament, the Chronicle could
not hire non-reporters to call in scores as the tournament progressed.
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The NCAA men’s basketball tournament is one of the most heavily covered
sporting events each year. The request for credentials far outweighs the
available slots in the arena. The NCAA has devised a system for allotting
credentials that is based primarily upon the size of the publication. In
1997, however, online reporters were not credentialed at all. Gannett challenged
this policy without success. For exclusively online publications, this
means that they cannot cover the Final Four from press row. For print publications
with an affiliated online presence it means choosing between a print journalist
or the online counterpart.
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Before the Jacksonville Jaguars’ first preseason game, the National Football
League conditioned credentials for reporters from the Florida Times-Union.
In order to receive credentials to cover Jaguars games, the Times-Union
had to agree that its Web site would not: publish photographs of Jaguars
games while the game was in progress; publish some information and statistics
from the game until it was over; or be labeled or designed in a way that
would resemble the Jaguar’s official NFL Web site.
The case of the real-time sports pagers
The real affront is that these events occurred after a U.S. appeals
court ruled that a sports league could not control the distribution of
real-time information to interested fans.
Stats Inc., based in Illinois, tracks, compiles and sells sports statistics.
It hires people to attend sporting events or watch them on television while
relaying information back to the company for distribution via the company’s
Web site. In 1994, Motorola asked Stats to put this information on pagers
marketed to sports fans. These pagers provided scores and stats of National
Basketball Association games every few minutes.
The NBA asked the two companies to stop and when the companies refused,
the NBA sued, alleging federal copyright infringement and misappropriation
of commercial advantage under New York law.
In July 1996, Federal Judge Loretta Preska granted an injunction stopping
Motorola and Stats from transmitting any data about NBA games in progress
via the pagers, Stats’ America Online area, or "any equivalent means."
Motorola appealed.
The appeals court dished out a fancy assist to Motorola by reversing
Preska’s injunction. The appeals court said that Motorola did not infringe
on any copyrights because a copyright requires an "original work of authorship."
The court noted that "unlike movies, plays, television programs or operas,
athletic events are competitive and have no underlying script." (Obviously,
the court did not consider professional wrestling).
Motorola was only providing facts that Stats compiled through reporters
who were independently watching the game. These reporters were not appropriating
broadcasts for which exclusive right had been granted to another entity.
Nor were they intercepting "data streams" that the NBA or its authorized
agent had compiled for the NBA’s own use.
Five important factors
The NBA’s commercial misappropriation claim was also swatted down by
the appeals court. A state misappropriation claim may only be brought if
it is not pre-empted by federal copyright law, which in this case required
the application of a narrow, "hot-news" exception. For the exception to
apply, five factors must be met:
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The plaintiff must generate information at some cost or expense.
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The information must be time-sensitive.
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The defendant’s use of the information must constitute free riding on the
plaintiff’s efforts.
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The defendant must be in direct competition with the product or service
offered by the plaintiff.
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The ability of others to free-ride on the efforts of the plaintiff would
so reduce the incentive to produce the product or service that its existence
or quality would be threatened.
The appeals court found that Stats doesn’t compete with the NBA in the
production of professional basketball games. In addition, the NBA does
not create facts about the games, so Stats would not be free-riding on
the NBA’s efforts. Slam dunk for Motorola and Stats.
The reaction of the leagues after this decision (NBA vs. Motorola) has
been to deny online publications any effective means of reporting data.
A number of methods are being used, including negotiating exclusive Internet
rights (similar to exclusive broadcast rights) with an organization chosen
by the league or team; conditioning credentials upon an agreement not to
do real-time reporting; or refusing outright to credential online reporters.
Publications unknowingly agree to these conditions or don’t fight them.
Many are unaware that the conditions exist.
Publications who can send print journalists have been unwilling to boycott
an important event simply to protest unfair credentialing decisions.
If editors and reporters fail to object, they run the risk of missing
the full potential of having an online arm. Credentialing agreements should
be scrutinized and objected to whenever they contain unfair limitations
on a newspaper’s right to distribute information. The opportunity for newspapers
to go online and provide a valuable service to interested sports fans is
imminent. And the issues run beyond sports. It is only a matter of time
before the credentialing issue spills over to other entertainment-related
events, such as the Oscars.
Many people have come to rely on the Internet to provide information
when the next newspaper edition is hours away and broadcast media are not
accessible. A large portion of this population includes those who want
to follow sporting events while they are at work. If your paper does not
provide the fans with updates while the games are in progress, the fans
will find someone who will.
Goldberg is a lawyer with Cohn & Marks, and provides legal counsel
to ASNE.
