Thursday, December 2, 2010

The NCAA vs. The News: the never-ending debate between private and public interests

Georgia Southern student Cliff Hatcher, 22, of Leesburg,
celebrates as the Eagles pull away from South Carolina
State in Saturday's first round FCS playoff game at
Paulson Stadium.

The NCAA. The National Collegiate Athletic Association. They bill themselves as being founded to "protect" student-athletes. What they've become, I think, is a huge commercial venture that helps protect billions of dollars in revenue for college sports.

And in Information Age, where the Internet rules, there is a constant conversation – battle, if you would – over the United States Constitutionally-protected dissemination of information (under the "freedom of the press" and "freedom of speech" clauses in the First Amendment) and the prerogative of commercial entities to protect their intellectual rights. Fair Use versus piracy. Where's the line?

Well, the little Statesboro Herald recently became the nexus of these two sometimes opposing principles after Saturday's first-round Football Championship Subdivision (FCS, formerly Division 1-AA) playoff game at Georgia Southern University between the Eagles and South Carolina State University.

The question at hand is over the rights of news organizations to report matters of community interest with the medium of video, particularly on the Internet, vs. the rights of other organizations to control their commercial interests.

I think there would be little argument that in a free and fair market economy, individuals and corporations should have the rights to protect their intellectual property and trade secrets. Being a photographer, I'm a huge proponent of artists being able to protect their copyrighted material. There has to be economic incentive for creative people to, well, create. But I think there will always be a battle to maintain balance between public and private interests.

Georgia Southern defensive tackle Brent Russell, left, meets
South Carolina State quarterback Malcolm Long and running
back Asheton Jordan, left, at the handoff and forces a fumble
which was returned 34 yards for a touchdown by defensive
end Josh Gebhardt in the first quarter at Paulson Stadium Saturday.

Let's try to set the stage. The NCAA is the governing body for college athletics. They set policy. They make the rules. They are entitled to contract with other parties for economic advantage on behalf of their members, which include both public and private universities and colleges. While every member must abide by NCAA rules, typical operating procedure is executed by the individual conferences during regular season play. Everyday news media coverage is usually facilitated by the individual schools. However, come championship post-season play – in any sport – the NCAA steps in and becomes the Big Dog.

Because they issue press credentials for these games, they lay down the law for media game coverage. The Herald and other local news agencies were told that television stations would be allowed to broadcast highlights of the game for only three days following, and not beyond. Any internet distribution of highlights was universally prohibited except on the NCAA's own website.

Well, Herald director of video operations Vince Johnson posted his Two-Minute Drill highlight video online Sunday, just as he has for every other Georgia Southern football game this season. Monday, sports editor Matt Yogus was greeted with a "cease and desist" e-mail from the NCAA.

To be frank, the NCAA has very little legal standing on which to base its playoff policies towards video. The news media is not bound by any contractual agreement between the NCAA and any television outlet for commercial broadcast rights. We are bound by a professional obligation to report the news, especially news that happens to be of great interest to our community at an event staged at a public university in a stadium paid for by public funds.  And that obligation is protected by the First Amendment.

Georgia Southern fullback Lee Banks scampers for an 11-yard gain
to the South Carolina State 13-yard-line in the fourth quarter at
Paulson Stadium Saturday.

The NCAA has a significant trump card, however. Along with the cease and desist e-mail was a threat to deny any press credentials to the Statesboro Herald. And they are within their legal rights to do just that. Hence, in the interest of being able to continue coverage of the Georgia Southern football team during the playoffs for our community, the video was taken down from our web site.

Let's be clear. The United States Supreme Court has ruled that persons can own certain rights to publicity in Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977). However, the ruling states that the news media could be liable for compensation to a party only for distributing an entire work or performance without permission. And if you want to strictly interpret this ruling, the right to publicity applies only to individuals.

Additionally, each news organization shoots their own video and creates their own, unique highlight reels. The NCAA simply can't legally claim ownership of these works. If anyone has a copyright issue, it's the news organizations because the NCAA is attempting to restrict the use of their copyrighted work. The NCAA simply has no case for misappropriation (piracy) or copyright infringement. And they should be careful about making themselves the sole provider of video highlight news from playoff and championship games. By unfairly eliminating any competition, they could be in violation of certain anti-trust laws.

While the NCAA has a legal right to regulate who is issued press credentials, do they have the right to determine the nature and content of coverage and how it is used, video or otherwise? Federal Courts have looked extremely unfavorably at prior restraint (censorship) over the years. However this, practice is becoming standard, not only in the business of sports: Increased Restrictions on Covering Sports Events: Credentialing Similar to Limits on Entertainment Coverage.

Many argue that the publication or broadcasting of material by news organizations constitutes commercial use since these organizations are commercial enterprises. However, over the years, Federal courts have generally ruled otherwise – that the publication and broadcast of material for primarily information and educational purposes is protected by the First Amendment, even if the distribution of that material is supported by advertising or other forms of revenue.

However,  Zacchini v. Scripps-Howard (where the court decided that broadcasting a 15-second circus act in a news program constituted a commercial infringement) gives news organizations pause before litigating this issue in court. The 5-4 decision was controversial, with the dissenting judges expressing concern that the majority's holding "has disturbing implications" and could have a chilling effect on freedom of the press. But litigating disputes is expensive and contentious, and an unfavorable ruling to either side will have far reaching implications – well beyond the world of college athletics.

To me, the delineation between use in the context of news and commercial use is fairly clear, in this instance. Highlight reels report the news and in no way whatsoever constitute an infringement of copyright or right to publicity under any known court precedent. On the other hand, if highlights are used in an advertisement promoting the news organization, that's commercial.

Georgia Southern linebacker E.J. Webb, center, celebrates with teammates after advancing
to the second round of the FCS playoffs with a 41-16 victory over South Carolina State at
Paulson Stadium Saturday.

In my opinion, the NCAA should recognize this obvious difference on their own and consider negotiations for an equitable solution. They are struggling with the realities of today's free-for-all Internet culture and how to remain a viable commercial entity in that environment, just like everyone else is. (Their policies on live reporting in the social media offer further example). I think there's a lot of room to make everyone happy, in the end, without going to court.

Someone needs to forcefully broach the subject, first. Perhaps after the playoffs? After all, the Statesboro Herald would like to cover the games of its hometown team. So we'll abide by their rules for now, fair or not.

I'm curious about how you, the readers and sports fans, feel.

I don't know about you, but information is information, whether it comes in the form of spoken or written words, or in images – still or moving. And, as far as I know, the First Amendment applies to all media - print, broadcast, and the Internet.

Does the public have an interest in a diversity of coverage – video or otherwise – from a multitude of sources about college sporting events, or are you happy with the NCAA being the sole provider of that news, whenever it sees fit?

C'mon! Tell me what you think.

1 comment:

  1. I think there are a few questions/issues that go beyond the First Amendment/copyright questions ...

    First, what did the credential you were issued say? By accepting a credential that stipulated no video for online use, than you accepted their terms. Was it on the credential, application form or waiver?

    Second, the First Amendment issue ... the NCAA is a private entity, therefore (believe it or not) our beloved First Amendment does not apply to them. However ... and this is where it gets entertaining ... Georgia Southern is not a private entity, it is a public university and is therefore bound to most Constitutional amendments. However (again), the athletic associations that oversee the sports programs at most colleges are considered "private-public partnerships."

    Muddy enough?

    Morally/ethically, I think the NCAA is in the wrong here. But until someone wants to challenge whether the NCAA-public college partnership/agreement is valid, I think we're stuck.

    So, who has the deep pockets right now?


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