The exception he’s talking about is the Fairness In Music Licensing Act of 1998, 17 U.S.C. sec. 110(5)(B). But that exception can only be asserted against the copyright owner of “a nondramatic musical work,” Id.

“As its title implies, the Fairness In Music Licensing Act of 1998 is limited to the realm of music. Specifically, the only works exempted under the provision added by this amendment are nondramatic musical works.” 2-8 Nimmer on Copyright § 8.18[C][2][b][i].

The NFL’s copyright is on an audiovisual work (the recording of the broadcast of the football game, made contemporaneously with transmission). So the only exception that’s applicable is 17 U.S.C. sec. 110(5)(A), which allows a church, a restaurant, a bar, or anybody else to show the Super Bowl on “a single receiving apparatus of a kind commonly used in private homes,” as long as there’s no direct charge to see the TV, etc.

That’s the only exception at issue here, at least in current law. No 55″, no 4 TV’s total, no square footage, no parking lot, no distinction for “food service” versus other kinds of establishments — all that is a red herring when it comes to the Super Bowl and other audiovisual works.

Fantastic analysis of the larger problem, Tim — I agree that special exemptions like these are bad news. I’d add one more reason — they often don’t even accomplish the intended goals because they are drafted so narrowly and with just one factual and technological scenario in mind. I’ve written that’s exactly what happened with ballyhooed special educational carve-outs like the TEACH Act and “face-to-face teaching” exceptions.