Deadspin editor Emma Carmichael recently posted an email exchange detailing her ongoing Copyright Cold War with Major League Baseball vice president Matthew Gould over the online posting of game highlights. “It goes something like this,” Carmichael said. “We post a highlight video from a game; they promptly email us with an informal cease-and-desist note; we take down the video and complain about it.”
After Carmichael posted a highlight featuring New York Yankees pitcher Joba Chamberlain, Gould emailed her to complain. Carmichael responded by asking for clarification of MLB’s authority to censor her. Gould responded, “It comes from a long-standing rights agreement that no video highlight clips from MLB game broadcasts are permitted online.” In a followup email, he added, “MLB Advanced Media is the exclusive licensee of the MLB Entities with respect to uses via the Internet and other interactive media of their game and exhibition telecasts and excerpts thereof.” (MLB Advanced Media and MLB Entities are the same thing; they refer to the joint venture of the 30 MLB franchises.)
So baseball made an agreement with itself that nobody but them could broadcast clips of previously played games, and by invoking federal copyright law, they managed to censor Carmichael and anyone else who dares to defy this mandate. This raises a couple of issues worth exploring.
First, even copyright supporters acknowledge the doctrine of “fair use.” Gould insisted Carmichael could not post a roughly 20-second clip of a three-hour baseball game without his permission. That’s a substantially more restrictive understanding of fair use than authors of written works are allowed to employ. My last post, for example, excerpted two paragraphs from a book under copyright. I don’t think even the most zealous copyright enforcer would argue I did anything improper or illegal by including those excerpts as part of my own commentary. Yet Major League Baseball seems to think there’s no fair use of any excerpts of any game, even by a website that specializes in sports news and commentary.
The second, more philosophical question, is how a baseball game may be the subject of copyright at all, even according to pro-copyright logic. Start with the Constitution’s own language: “[The Congress shall have power to] promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Copyright exists for “authors” of “writings.” Who is the author of a baseball game?
Even if you expand the constitutional definition of “writings” to include works fixed in an audiovisual medium, such as a hi-def Internet broadcast stream, there still must be an “author” to satisfy the Copyright Clause. But a baseball game is not an artistic or literary work. As the Supreme Court noted in its famous decision exempting baseball from the antitrust laws, baseball games are “public exhibitions for money.” It is a unique event where the public’s participation is expected if not necessary.
You might be tempted to respond that Major League Baseball itself is the author. But that mangles the definition of “author” beyond recognition. MLB is the exhibitor. There is no author, because one cannot “author” a spontaneous live exhibition. There are scripted exhibitions, like plays (or professional wrestling), where copyright is vested in the playwright. But there is no one person, or even group of persons, who can clearly be identified as the author of a baseball game. It’s akin to a group improv performance. Nobody “wrote” Joba Chamberlain’s highlight; it simply happened.
The plain meaning of author is “a person who writes a novel, poem, essay, etc.; the composer of a literary work composer of a literary work, as distinguished from a compiler, translator, editor, or copyist.” The mere fact that MLB and its media partners compiled or edited together a series of spontaneous performances does not satisfy this definition of authorship.
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It seems to me that freedom is not won on technicalities.
Nice read. Thanks.
S.M. Oliva,
Thank you for bringing sport into the economic discussion. I am an anarchist and I LOVE sports. The two things are not mutually exclusive.
One interesting aspect of MLB’s absurd policy is how they are hurting their game. Take as contrast, the NBA’s approach to video highlights. Not only can you find highlights from the NBA posted instantly on YouTube, but you can watch ENTIRE past games on YouTube. Want to relive the Lakers-Celtics clashes of the 1980′s? They’re on YouTube. Game 5 of the 1993 Bulls-Knicks series (the famous Charles Smith game?) On YouTube, in its entirety.
The NBA has embraced the digital revolution. The MLB has fought it. It’s no surprise that the NBA’s popularity among the youth, not only in America but globally, is surging, while the MLB is suffering.
Recently, NBA commissioner David Stern was on a podcast hosted by ESPN’s Bill Simmons. Simmons, taking the usual economically-ignorant approach, wondered why anyone would go to a game anymore? There are HDTV’s, Internet packages, streaming highlights, etc.
Stern said he used to feel the same way, but now he realizes that the live game is actually a different product. Ha! He sounded like Jeffrey Tucker schooling us on ebooks versus traditional books!
So keep up the great work. Your analysis of the NFL lockout was fantastic and I have heard nothing close to it at my usual stops, even the hardcore sites.
Wouldn’t the person who operated the camera be the author of the clip, the same way a photographer is the author of photos he takes of a building (rather than the architect)? Perhaps sports shots are generic enough that they are more like scans of classic artistic works, merely a record of facts rather than something artfully arranged, and thus not even subject to copyright.
Commenting on the recent NFL labor strife that has been discussed here, Shannon Sharpe said “Ribba-bloobbleep, huh-huh, scrubba dubba, Howie Howie, rebba-blubba Pocket Hercules to tha house-ablubba blabba. Word.”
You know I love you guys to death, so don’t take this as a major criticism, but I was wondering why you charge for the Mises Institute courses. Why aren’t they free?After all, you are a non-profit and survive from donations. Why not make the courses free as you have made the literature and web site free? Set a max of say 200 students, record the lessons and put them on line for the rest of us to watch.
What they should do is break all ties with Auburn University and found a private economics institute.
Or, you could go ahead and charge for the classes, then post them online for free for those of us whose price elasticity of demand doesn’t match your elasticity of supply.
The platforms they are using for putting out the information aren’t unlimited, so as far as the classes themselves if they were to offer them completely free there might be too many in some classes. So it’s partly management of supply and demand.
Also, this barrier keeps out some people who aren’t serious or might just join to be disruptive. You might pay to disrupt, but it’s a lot less likely.
LvMI many times puts out the video of the first lecture and commonly posts some of the presentation material. And of course almost if not all the books used in the classes are made freely available.
I’m not quite in a position myself where I’ve been able to attend a class, because until recently I was the only one working. So I understand your argument about our price elasticity of demand. It’s certainly not that I wouldn’t like to attend some of the classes, but I don’t mind waiting until I feel a little better about my personal circumstances.
Their defense of copyright in this case may be a form of Labor Theory of Value argument – they are not being creative in any way but they invested substantial amounts in the TV equipment, salaries, etc. Therefore (they would argue) they “must” be owed money by anyone who manages to watch any part of the show that they produced. They would of course argue for the price to be based on the amount of their investment, and not on the price which most people in the market would be actually willing to pay – especially the people at the margin who are merely consuming highlight clips on a casual basis who probably would be willing to pay exactly $0 for the privilege.
I’ve often wondered about that. Yes with professional sports, but especially with college sports and the Olympics. A college game is two college teams playing each other. It is a news event. Free press!
Who authored the Zapruder film? Oh, right, Zapruder.
If someone goes out and spends $300,000 on equipment and $30,000 on salary to shoot and edit a performance, then they own whatever they recorded.
So that’s who the author is. That’s a straw man rhetorical question.
You, who spent nothing on it and contributed no labor to it, don’t own THEIR footage, obviously.
The players who are the subject of the work already signed their rights to that footage away (presumably voluntarily for millions of dollars), so there’s no issues there.
The question is (as you allude to) what’s fair use.
If you bootleg a concert, do you own that recording?
Or can I film a game from the top of a building across the street, or a hot air balloon? Would I then be the author and own that video? [In anarchy, yes, of course.]
How much can you show of their clips and still be fair use?
Discarding between-innings stuff, the game itself might be 120 minutes. If you only count when the ball is in play (when game events generally occur, i.e., when it’s legal to steal a base and ), it’s far less than that, maybe 90 minutes.
So 30 seconds of a 100-120 minute game might be 0.4% of the entire work.
How many paragraphs in a book? Let’s say 1000. So if you reprint 2 paragraphs of 1000, that’s 0.2%.
Seems more than fair.
What I wonder is…what if it was a murder mystery and all you quoted was the 2 paragraph whodunnit conclusion of the book?
What if all you showed was the scoring in a 1-0 game (taking 30 seconds or less)? Isn’t that 100% of the whole “game” in one sense?
P.S. U.S. IP law is crap. That should go without saying.
Good job ignoring the word ‘investors’ in your argument.
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