Monday, February 26, 2007

A legal response to a non-legal question

RPK posted a query as to whether bloggers need "express written consent" before live-blogging. Short answer is, as with all things in the law, its not so clear. But it is a legal question and I am a lawyer, so I'll take a crack at it.

The question revolves around the nexus two areas of law, copyright law and First Amendment law. All professional sports leagues own the copyrights to the broadcast of their sporting event; be it radio, TV, Internet, or other medium not yet invented. This copyright includes, among other things the visual images and the sounds from the game. (This is why Sportscenter can't show highlights of a game until it is given clearance by the network that broadcast the game.) Leagues have the right to control the means and the method in which their games are rebroadcast.

However, the copyright does not include a recounting of the game. Unfortunately for the leagues, sporting events are considered news. I mean there is an entire section in the newspaper devoted to sports. And no one, not even the NFL can copyright the news. Well almost.

Where things get fuzzy for the live-blogger is the distinction between "hot-news" and "cold-news". Hot-news is news as it exists when it is first reported after it first occurs. Hot-News is protected under copyright law, as it is the way newspapers make their money. If a newspaper, or news organization couldn't protect their reporting when it was hot, no one would buy any one paper. The news would be the same all over the place. Everyone would be stealing stories, and no one would be doing reporting. There would be no incentive to cover the news when you could steal it from someone else.

Cold-news, is hot-news after some time has passed and it no longer has any economic value. Cold-news is not protected and is part of the public domain.

So how does all of this relate to the professional sports? Well live broadcasts are the leagues' hot-news. All the economic value of a game lies in that there is only one place to watch it, or a handful of places to hear it. So bloggers are screwed? No, not really. The line between hot-news and cold news is a fuzzy one at best. Live blogging isn't all that live when you consider all the delays and even the days that go by before someone reads it. Even so, the description of a single play loses almost all economic value soon after the play is over. (Or at least that's what i would tell the court)

Even outside the realm of copyright law, bloggers can find safe haven in the First Amendment. Copyright law always takes a back seat to the First Amendment. The only question that needs to be answered where copyright material meets the first amendment, is whether the blogger has contributed enough "transformative elements" to bring the work under the protection of the
First amendment.

Put in the context of this question, did Will Leitch (Deadspin editor and CBS glogger?) bring enough of himself to the live-blog to protect the material under the First Amendment. Sure he did. No one really reads a live blog to get a play by play recap, they read it for the commentary. Which isn't copyrighted by the league.

So there, take solace bloggers. You have at least a colorable claim that what you are going is protected under the law.

But beware courts are fickle, and I'm not a copyright attorney. So be careful.

Friday, February 23, 2007

Chain Reaction

My partner has picked up the slack recently, so now it my turn to turn it up a notch and go off topic for just one post.

I recently joined the myspace revolution, and my buddy sent me this chain letter that detailed his life soundtrack, and I found it somewhat interesting. Usually I’ll delete a chain letter (they call them bulletin’s on myspace, though they serve a slightly different purpose) the second I get it, but this one stood out.

The general premise was, you put your ipod on shuffle, and you hit the skip button to go that next song, which determines the soundtrack for the movie made on your life. For example, the first time you press the skip button, the next song that comes on is the song that plays during your opening credits. Hit skip again, the next song that comes on is the song for you waking up and getting ready for school, hit skip, the next song that comes on is the one that plays for your first day of school, you get the idea.

I thought this was a very interesting concept, so I decided to try it. Hey, I had nothing to lose, I’ve got very little besides gangster rap on my ipod anyways, so I thought the results would be somewhat humorous. Lets take a look at the soundtrack of the Life of Bull.

Opening Credits: Dre and Snoop, Next Episode. How great is that beat? I love that song, and it would make sense to open up the movie with the credits rolling and that song playing with the different characters being introduced with still shots.

Here is an even greater question, who plays me? Richard Mull? Vin Diesel? (I’m giving myself a lot of credit there) Or how about this, who plays Ed and Hace? Earthquake and Typhoon?

Waking Up: Dem Ghetto Boys, Lean Wit It Rock Wit It. Great song, its up-beat though, which I certainly am not when I’m waking up. Nobody is as angry as I am when I wake up. It’s a good thing I live a lone and normally don’t wake up next to anyone else, because I’m miserable when I wake up. Good song, but its kind of like Rosie O’Fat trying to jump into a size 6 dress, it just doesn’t fit.

First Day of School: Motorhead, HHH Theme (The Game). I wont get much agreement here, but that song f’n rules. I remember the WV Power ran out onto the field to that song last year. This song gets you fired up, and while I NEVER got fired up for school, if I were watching the movie on my life, this song would get me fired up to see what happens at school.

Falling in Love: Lil Jon and the Eastside Boys, Whatchyou Gon’Do Instrumental. Talk about a great song that doesn’t fit. I love this instrumental, but my lack of variety in the ipod kind of hurts the chances of finding a song for this scene. Not that I give a shit, because I’d rather skip this part of the movie anyways. Whatever the song for this moment, it must be composed by the Legendary Buster Gonads.

Fight Song: Bonecrusher, Never Scared. This is the best song I have on my ipod, and I don’t know that there is a rap song that gets me as fired up as this one. This is the PERFECT song for this scene, enough said.

Breaking Up: Lil Jon and the Eastside Boys, Put Ya Hood Up. See Falling In Love, the same rules apply here, lets move on.

Prom: Juelz Santana, Murda Murda. Out-F’n-Standing. I love this song, as hardcore as it is, everytime I’m angry, I hear this song and it makes me smile. Prom is overrated anyways so this kind of song with me and a bunch of white, suburban, wanna be gangsters wearing tuxes while getting out of limos would be clutch, good pick.

Life: Ice Cube, Friday. Another classic, the way this song plays, it almost seems like you’ve got a great handle on life, and its coming at you in slow motion. It still has a great beat and it fits perfectly.

Mental Breakdown: Yung Dro, Shoulder Lean. Great song, bad fit, I’d like to think I wont go through a big mental breakdown, but you never know. Either way, this probably wouldn’t be an appropriate fit in this situation.

Driving: Biggie, Big Poppa. You know you’ve been rolling down the street with the windows down and the rearview mirrors vibrating with this song playing. It makes you feel like a pimp because the ladies love it and the guys love playing it.

Flashback: D12, my band. I don’t totally understand this one, it doenst make much sense.

Getting Back Together: Archie Eversole, We Ready. Perhaps the most under appreciated rap song of all time. Rap songs don’t normally apply in these situations, but this one fits. We Ready……..to get back together right? Or not.

Wedding: Jay Z, Dirt Off Ya Shoulda. Something tells me there are plenty of other options that would fit this situation a little better. Remember, the play list is on shuffle for a reason.

Birth of Child: Lil Jon, Ludacris, Usher, Yeah! Perfect, just the right song and the right amount of excitement without getting too sappy.

Final Battle: Chamillionaire, Ridin Dirty. When you’re riding into your final battle, you are most certainly ridin’dirty, good fit.

Death Scene: Eminem, Without Me. Well, its fitting, maybe a little too loud, but Life Goes On……….Without Me.

Funeral Song: Eminem, I Got Five On It. For a funeral song its not bad. We all cant have the Scottish Bagpipes. Since all I have is gangster rap, this fits.

Closing Credits: Ruff Ryders Anthem. This song is straight gangster. If I ever wanted a song to play that summarized or capped my life, this would be it. You can ride off into the sunset with the Ruff Ryders, there is no other way. Classic.

BLOGGIN' is cheap muthuf****!!!!

Wednesday, February 21, 2007

Live blogs and "expressed written consent"

I've never heard this discussed, so I'm not sure what precedent is for this (someone in this basement has to know).

Anyone who has watched a game on TV has heard the legal statement forbidding the "Reproduction of pictures, descriptions and accounts without expressed written consent of (insert league)..." At some point, will leagues clamp down on this strangely interpreted rule? They'd sure have plenty to go on here on the interwebs.

The recent Super Bowl showcased just how popular running diaries and live blogs of games are becoming. Some writers have been doing these for years and their successes have inspired more to give it a shot. Expect the increasing live accounts (and thorough recaps) to continue, but as they are more widely read, won't someone say, "Wait, this is exactly what we're trying to control here!"? It's no secret that the 4 major sports leagues don't always act in the best interests of their fans.

With Major League Baseball limiting television access to their games, and trying to own their stats, it will come to be that people will be share the "product" with others in some manner. If, all-around-good-guy-who's-totally-deserving-of-his-position-and-has-thrived-in-it, Bud Selig wants to see what lengths he can go to screw his fans, he could just wait until the World Series and crackdown on those doing the blogs. To be honest, it seems like something straight out of his playbook, but I could actually see it happening with the NFL first. With the success of the blogs a couple weeks ago, imagine how many could be produced next year.

So how is it that "bloggers" can legally share a live blog of a game? Do they all get the "expressed written consent" that they appear to need? Doubtful. I'd bet that some people cover their bases, but how many? For the Super Bowl, CBSportline invited Deadspin editor Will Leitch in on the fun at their site. Sites like CBSportline, ESPN, AOL Sports and Yahoo probably know how to handle this, but would Deadspin & Co.? Was CBS just protecting Leitch in case something does happen, giving him an approved place to do his thing?

Have I missed where someone has covered this or am I looking at it the wrong way? Is the league's statement actually supported in a court of law or are they just asking you as strongly as they can no to do it?

Tuesday, February 20, 2007

Didn't we go to school with him? Oh, MARK Price

Continuing with the theme of recognizing birthdays long after they've passed, I bring you my favorite Cav of all time.

Born February 15th, 1964, Mark Price was a standout at Georgia Tech though whether he could make it as a pro was in doubt due to his short stature, tendency to telegraph his moves, complete lack of defense and overall mobility deficencies. Standing 6 feet tall (right...), Price was less of a leaper than even me. He had the right handed layups down pat, but seriously, he probably went his entire playing career without ever touching the rim. I've seen Carlton from the Fresh Prince dunk in person, and Mark Price couldn't do it.

Regardless of his shortcomings, Price was successful in his niche as a professional player. He was among the league leaders in assists, twice won the 3-point shootout, was a 4 time All Star and retired as the best free throw shooter in NBA history. The draft day trade that brought him to the Cavs also introduced an era of success in Cleveland basketball, with the team making the playoffs 7 of the nine 9 years he was around.

Thinking he was old and washed up, on September 27th, 1995 the Cavs traded Price to the Washington Bullets, and in the process made Cleveland basketball irrelevant for almost a decade. I can still remember the radio breaking the news... "We all knew this day would come someday..." We did? Trading the face of the franchise and fan favorite during a playoff bound season? No sir, I did not know that day was coming.

Not even 2 years after the kick in the balls that was the Bernie Kosar release, the franchise hadn't learned anything about how Cleveland fans apparently react to being fucked without even getting dinner first. (On the plus side, the Cavs got a 1996 draft pick in return and chose Vitaly Potapenko. Who's Vitaly Potapenko? He's the guy who was drafted one spot ahead of Kobe Bryant. Wise move.) Way to be blind, asshole.

Well, that day in September was probably the last day of me being a Cavs fan. I was 14 at the time. I'd been lucky enough to go to probably 100 or so games by that point. I, um, collected all kinds of Cavs crap. I mean, I even had the Mark Price Dream Team jersey (#5) hanging on my wall! Since that trade, I don't think I've been to 3 games. Go ahead and move the team now, save us the months and months of stories about LeBron not being able to bring a championship to his "home town". Sorry Cavs fans, but I can't get behind them and I've tried.

Trade Mark Price? How's that make sense on any level? What's next, Bobby Phils dying and the team signing someone who may have been responsible for his death? Well now that I've gone and sufficiently pissed myself off, I'm outta here.

HAPPY BIRTHDAY MARK PRICE!

Monday, February 19, 2007

Wait, who?

Who's the new coach of the San Diego Chargers?

Norv, who? No, not that Norv. Norv Turner?

Not the same Norv Turner who was fired by the Oakland Raiders two years ago and replaced by Art Shell. In can conclude this whole article by saying that there is someone, albeit Al Davis, who thinks Art Shell is an improvement over Norv Turner. But I won't stop.

Turner, best known for piloting the offense of the best team of the 1990's and rivaling Otis Nixon for worst complexion in sports, is now the head coach of the best team in the league. He has a career record of, oh 58-82-1 and a 1-1 playoff record. That's right, nearly 30 games below .500. Given enough time, flaming midgets can coach a team to 30 games under .500.

What would posses the Chargers to hand the reins over to Norv? Is he really an improvement over Marty Schottenheimer? Marty won football games, might have yaked in big games, but at least he got there. I know Marty got fired because he wanted his brother as his Defensive coordinator (which also caused him to get fired from the Browns) and his inability to co-exist with GM A.J. Smith. But couldn't two grown ass men keep it together for one more year. At least to make a run at future Browns coach Bill Cowher.

So you replace Marty Schottenheimer with Norv Turner, for what? Winning despite Norv, making the playoffs and losing when you are out coached by Bill Belichick or Tony Dungy. Coaching matters a little bit in the NFL, and especially in the playoffs.

This isn't about how good or bad Norv Turner is as a coach. Its about pro teams pulling out retreads because they don't want to take a chance on a new guy. Why not go after a guy like Rex Ryan, who took what is really an aging defense and made it one of the best in the league.

No, lets get Norv Turner because that's a known commodity. A crappy one but a known one. The devil you know is better than the devil you don't. That's what makes good teams crappy ones.

Countless times in sports old, tired, unsuccessful coaches get jobs over younger (or Older) unproven ones. Doesn't really makes sense to me. How many times can you polish a turd?
All i have to says, is that when i light my socks on fire it is Got Damn exciting!

Sunday, February 18, 2007

Overwhelming Optimism

Have faith, you loyal fans of sport. These next few weeks are amongst the worst of all time. This weekend, excluding the two and a half hours I watched bowling on Sunday, was the worst sports weekend I can remember.

The NBA All Star game is about as exciting as watching my colleague light his socks on fire or suffering through poker on television. Speaking of which, why the hell do they put that crap on TV??

I can understand some of these other pseudo sports, but poker?? Why is that on ESPN?? How is it interesting to watch some guy give us his “poker face” for five minutes?? Its like a glorified starring contest, I’d rather see an “o-face”. That sounds bad, oh well.

It was mildly interesting to see Vandy upset Florida, but in the grand scheme of things, what does it matter? Florida will be a top seed in the tournament, and this loss will mean nothing when selection Sunday hits in three weeks.

So what do you have to look forward to until the conference tournaments?

Well, not much really. If you are like me, you understand that there aren’t many baseball storylines that you haven’t heard about 84,000 times already, surfacing again in Spring Training.

The NFL Draft is kicking into high gear with the combine, 40-times, bench press reps, and other useless bits of information that will slightly increase draft status, but ultimately are as useless as the Betty Butterface in a group of hotties.

If you are like me, you look forward to Sunday afternoons, because Sundays are for bowling. I know I’m kind of in the minority there, because few people get as fired up for bowling as I do. Speaking of which, I rolled 14 games this weekend. On Friday I rolled a 630 series, and hit 1012 pins through five games that night. (Insert Barry Horowitz pat on the back, fully understanding that nobody cares, and move on)

What has been interesting is that Michael Irvin is no longer with ESPN, and Bill Cowher has joined the CBS pre-game show. I never liked the playmaker as a player, but as a studio host, he has been mildly entertaining. However, I can see why ESPN decided to part ways with the playmaker. If Parcells is coming in to take his place like they say he is, can you blame ESPN?

Everyone loves to hate the CBS pre-game show, for whatever reason. I like Cowher a lot, but I have no idea how he’ll do as a studio analyst. Sure he can handle personalities, X’s and O’s, but can he be opinionated and present this information to you in a way that you’ll respect and understand? We’ll find out in about six months.

Personally, I think they need to give Charley Casserly more air-time. While he’ll forever be remembered as the guy that didn’t draft Reggie Bush (which could get him looked at in Texas the way Buckner is looked at in Boston) he does a hell of a job on the pre-game show of breaking down personel decisions, which are very interesting.

Those of us in the northeast must remember, the little gopher saw his shadow (didn’t he?) and the life of Old Man Winter is nearing its end. Before you know it, the snow will melt, Cindarella will go to the dance with her pretty slippers in late March and we can all tear our brackets in half when the naughty little girl in accounting who knows nothing about sports takes her extra two weeks paid vacation after she boasts the winning bracket in the office pool.

Shortly thereafter, the first pitch will be thrown, the days will get longer, the beer will taste better, the ladies will display their summer wardrobes, and all will be right with the world. Three more weeks my friends, three more weeks.