Info/Law

Plus ça change, plus c’est la même chose, as they say. Last year, Bill blogged here about the NFL’s efforts to bully churches into stopping their members from gathering together to watch the Super Bowl. Fast forward twelve months, and we learn … that the NFL is trying to bully churches into stopping members from gathering together to watch the Super Bowl. (Do you suppose my old hometown rag can just assign the NFL-threatens-churches story to a keyboard macro? It would save time, I think.) Thus does the NFL’s history of picking on the little guy acquire another data point.

Senator Specter, at least, seems to have had enough. Already mad at the NFL over the Spygate controversy, Specter on Monday introduced a bill that would create a new statutory exception to copyright’s public performance right for churches to exhibit “a transmission or retransmission of a performance embodying a professional football contest.” (Here’s the full text of the bill, S. 2591.)

Does current law really expose churches to liability? Specter’s statement introducing the bill (154 Cong. Rec. daily ed., p. S603) gave the following copyright rationale:

…A strict reading of the copyright code prohibits virtually anyone from bringing a large group of people together and watching the Super Bowl. The one exception to this general rule is “food service and drinking establishments.” This exemption allows sports bars to show a sporting event, so long as they do so on screens that do not exceed fifty-five, 55, inches. Although the law is nearly impossible to enforce for Super Bowl parties held in places other than food service and drinking establishments, the NFL has turned its sights on churches and other houses of worship, which use the large screens normally reserved for displaying hymns to show the Super Bowl to their congregation.
…
When Congress created the sports bar exemption in 1998, they did so based on the rationale that the display of copyrighted performances–such as football games–in sports bars and similar establishments did not negatively impact the overall viewership for the game and value of the rights to the game. The same rationale applies to churches. Allowing churches to show the game would not diminish the overall viewership for the Super Bowl. If anything, it increases the viewership by making it a social event and bringing people out to watch the game who might not have watched it at home or in a bar.

At one level, the Specter bill seems harmless enough. He’s surely correct that church Super Bowl parties expand the pool of viewers (thereby redounding to the direct financial benefit of broadcasters and the NFL through increased advertising revenues). And it’s hard to quarrel with the rationale that sports bars aren’t entitled to a uniquely privileged position such as they occupy under the current state of the law.

At another level, though, the legislation raises as many questions as it answers. If Senator Specter truly is correct that church parties bring in more revenue to the copyright holders, then they should qualify as fair use under the reasoning of cases like Kelly v. Arriba Soft, 336 F.3d 811 (9th Cir. 2003), which found fair use in part because Arriba’s use expanded Kelly’s customer base. Why, then, do churches need special statutory protection in addition to the fair use doctrine? Perhaps it’s because fair use’s unpredictability in practice limits its usefulness to the churches in this context. As Professor Lessig has argued, “the fuzzy lines of the law, tied to the extraordinary liability if lines are crossed, means that the effective fair use for many types of creators is slight.” In other words, if fair use isn’t enough protection for the churches, perhaps it’s a signal that fair use isn’t enough protection for anybody.

Note, too, how Senator Specter’s bill highlights the default assumptions of copyright — broad grants of rights to copyright holders, reined in by exceptions that are (fair use aside) narrowly drafted and exceedingly technical, applicable to only certain types of users or works. The proposed statutory exemption applies only to churches (as defined via a cross-reference to the tax code in the bill) and only to broadcasts of “professional football contests” (so you can forget about watching the World Series at church!). The pileup of detailed, limited copyright exceptions not only adds to the overall level of clutter in the statute, but fosters a mindset characterized by a crabbed lack of attention to the rights of consumers and users of copyrighted works. There are efforts underway to rethink copyright from top to bottom with an emphasis on increasing respect for user rights — Professors Samuelson and Litman have produced some impressive work in this area. The Specter bill, however commendable, only highlights the need for farther-reaching reforms.

(Senator Spector’s proposed legislation doesn’t address the other issue — trademark in the name “Super Bowl” — raised by the NFL in its complaints to churches. With good reason; as Bill pointed out last year, the argument that a church infringes the NFL’s “Super Bowl®” mark by hosting a “Super Bowl party” is specious, since the church is using the mark only to refer to the NFL’s own product.)

Filed under: Copyright, Media, Scholarship, Trademarks, Video