On one end of the spectrum, we have television and radio broadcasts of sporting events. These transmissions are produced with a very high level of professionalism and dozens of people work behind the scenes to make them possible. At the other end of the spectrum, we have a single fan with a cell phone, calling to let his pal, dad, or girlfriend know that the shortstop just made a spectacular play. In between those extremes, we have a wide range of activities, some of which are beginning to generate concern among users as to which actions are permissible, and which are not. As we’ve seen time and again, sports leagues have a certain propensity to claim ownership of everything, just in case. This shows up in actions ranging from restrictions on the use of the term
Super Bowl, to preemptive legal strikes against web sites that have little to do with sports. Given that, and the current breakdown in the concept of intellectual property in our society, some conflicts are bound to occur.
As technology progresses, the potential for users to cross the line from simple conversation into what teams might consider the "rebroadcast or transmission of the description and accounts" of a game grows. An early version of this problem manifested in 1997, when Motorola began selling a pager known as SportsTrax, which gave users the ability to track vital statistics and scores of games in real time. The pagers received information from a service with the quaint name of Sports Team Analysis and Tracking Systems (STATS).
STATS, in turn, received its data from a small army of users who attended the games or watched them on TV, then relayed the data back to the parent company, where it was relayed to the pager users and AOL.
The NBA considered STATS’ actions to be a clear example of misappropriation—a legal term that essentially translates to "they’re stealing our stuff"—and requested an injunction to halt the activities of STATS and Motorola. Misappropriation in this instance referred to an earlier precedent set in International News Service v. Associated Press. In that case, INS was found to have misappropriated AP news information by improperly gathering information from AP employees and bulletin boards, then rewriting it for sale to its own clients.
The NBA was originally granted its injunction in NBA v. Motorola, but that injunction was overturned on appeal when the higher court agreed with determinations that copyright applies to the broadcast, not the underlying game. Additionally, the court found that the NBA’s case failed the test of what constituted "hot news" according to the INS decision.
We hold that the surviving "hot-news" INS-like claim is 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. We conclude that SportsTrax does not meet that test.
So, what does that all mean to the rest of us? My non-legal, non-lawyer understanding is that we currently retain the right to transmit our own descriptions and accounts of any sporting event in the US. That, of course, doesn’t mean that any particular franchise has to allow us to do so while we remain on their private property. It also doesn’t mean that, right or wrong, a league won’t be prepared to fight you in court, taking the chance that they’ll still be able to fund their legal team long after you’ve declared bankruptcy and begun living on the street. Be forewarned, and be careful.