Last year in July, the National Basketball Association scored big in the case of NBA v. Motorola when a Manhattan federal court granted the league the exclusive right to transmit scores of basketball games in progress to electronic pagers. All of a sudden, team names paired with numbers - Knicks 35, Celtics 28 - were converted into chunks of intellectual property and handed over to the NBA empire. Immediately after the ruling, the NBA launched another suit against America Online for daring to transmit real-time sports scores to its subscribers. The decision against Motorola is on appeal as we go to press.
This "hot scores" decision signals an alarming new trend in intellectual property rights. The NBA and other sports groups are no longer satisfied with the huge sums they receive from selling TV and radio stations the right to broadcast sporting events. Now they want to control all the information about the games. Before the Motorola ruling, if you invited a bunch of friends over to watch a football game on TV and talk about it over chips and beer, it was called The Great American Pastime. Now, it's become a living room conspiracy to rip off the NFL.
The facts of the NBA case illustrate the absurdity of the decision. The NBA sued Motorola to prevent it from transmitting real-time game scores to users of Motorola's "Sports Trax" electronic pager devices. Only the scores, ball possession, and time remaining were transmitted. Motorola obtained those scores the way most of us do - by watching basketball games on TV. The company then typed the scores into its message system.
The NBA claimed this skimpy data stream represented a large part of the overall value of its pro basketball games. The court agreed, saying, "these products cross the boundary from mere media coverage of NBA games into competing commercial appropriation of these games." With this ruling, the only coverage left for a news organization is to report, "Yes, the game is in progress - and we'll tell you all about it when it's over."
The absurdity grows when we find that even as the NBA and its allies make their bold property grab, they are thoroughly confused about why the court said the NBA should own real-time game scores. According to The New York Times, Richard Cotton, general counsel for NBC (which sided with the NBA in this case), argues transmitting real-time sports scores is not "news" but a "virtual re-creation" of the sporting event. Whether or not he's right, such distinctions have nothing to do with the logic of the court's decision.
The Motorola case did not rely on copyright law, but on an old Supreme Court case from the 1920s in which The Associated Press was given the right to prevent competitors from tapping the AP wire service to sell the intercepted "breaking news" stories. So, in an ironic twist, the NBA's new right to prevent companies from reporting sports scores as "news" was borne out of a decision to protect the transmission of news.
Look more closely and the AP analogy will seem even stranger. The defendant in the AP case had intruded on the wire service's transmissions before they were reported by AP's customers - print newspapers. In contrast, Motorola simply copied sports scores from the NBA's customers - TV broadcasters - and did not intrude on any proprietary NBA systems.
How far beyond sports scores does the NBA ruling extend? It's hard to say. Can a news organization simply report "Lakers ahead by 8 in the third quarter" without the NBA's permission? Will the NBA try to censor online chat rooms full of sports fans discussing a basketball game while watching it on TV in their own homes? Can a bartender show a football game on big screen TV to hundreds of customers without paying the NFL for the right to tell those customers the score? What if a famous quarterback suffers a life-threatening injury on the field or a terrorist blows up a bomb in the bleachers? Is that news part of the NFL's property right? What if a famous public official is assassinated on the premises of a privately owned museum, movie theater, or K-Mart? Will the owners of these places have a legal right to demand license fees from news organizations that want to immediately broadcast information about the crime?
Our courts are being placed in the role of legislators, pressured by huge media interests to remove "hot scores" and other swaths of information from the public domain. What are concerned citizens to do? If online civil liberties groups hit the courts often and hard with test cases and legal briefs, they may be able to halt the property grab. Judges must be made to understand they are not just ruling narrowly on whether to protect the investments of big corporations, but on whether their decisions will remove broad areas of publicly available data from netizens' hands.
Nay to Clipper 3.1.1 Twenty members of Congress aren't pleased with Clipper 3.1.1, the latest White House proposal to restrict encryption exports and create a key escrow infrastructure. (See "Feds versus Freedom," Wired 4.12, page 94.) In a mid-October letter sent to Secretary of Commerce Michael Kantor, 14 Senators and 6 Representatives complained they "were not consulted in the formulation" of Clipper 3.1.1, which "shortchanges both US business and law enforcement interests." Meanwhile, Senator Conrad Burns (R-Montana) has promised to press ahead with S 1726, the Pro-CODE cypto liberalization bill, during the 105th Congress.
Desperate Despots Doublespeak, anyone? Burma's military rulers have adopted a new "Computer Science Development Law" that makes it a crime to own or use a fax machine or modem without government authorization, punishable by up to 15 years in jail. Similar penalties can be assessed upon those who use computer networks "for undermining state security, law and order, national unity, national economy, and national culture." Burma's new law has already claimed at least one life. Last June, Norway's honorary consul, James Leander Nichols, died in a Burmese prison after serving six weeks of a three-year sentence for unauthorized use of a fax machine
Location, Location, Location The US Supreme Court has declined to hear an appeal filed by Robert and Carleen Thomas of Milpitas, California, who were convicted on obscenity charges in 1994 after a Tennessee postmaster downloaded sexually explicit files from the Thomases' Amateur Action BBS. Observers, including the ACLU, had hoped the Supremes would take the case - if only to clarify jurisdictional issues stemming from the fact that the couple was convicted according to the "community standards" of conservative Tennessee, even though their BBS was based in more liberal California. Having exhausted their avenues of appeal, the Thomases remain in prison.
