The NFL wants you to think these things are illegal

http://arstechnica.com/tech-policy/2015/01/the-nfl-wants-you-to-think-these-things-are-illegal/

by suprgeek • 11 years ago

251 87 11 years ago

arstechnica.com

pluma• 11 years ago

Amazing that is legal for the NFL to say that these things are illegal.

_nullandnull_2• 11 years ago

What is more amazing is the NFL is a non-profit organization and is exempt from paying taxes.

mason55• 11 years ago

That's a bit misleading. Each of the teams are a for-profit enterprise and pay taxes on the huge amount of money they bring in.

jccooper• 11 years ago

The Leauge Office is; the teams aren't. The teams make all the money, so it doesn't matter too much.

But it still doesn't make much sense for even the League Office to be tax-exempt. It doesn't meet any of the general criteria of operation for the public good. It would be hard for the government to address, since that status has a lot of history and the league has a lot of money and goodwill behind it. And there's some complication with player pensions or something. The best scenario would be for the NFL to give it up voluntarily; it wouldn't be a high price to pay to remove a common criticism.

diminoten• 11 years ago

Freedom of speech can be a strange thing.

tbrownaw• 11 years ago

I'd think that lying about the law or people's rights ought to be slightly worse than slander/libel.

baddox2• 11 years ago

It doesn't seem so strange to me, although it does seem rare at times.

rayiner5• 11 years ago

I feel like lying about legal obligations falls into the "yelling fire in a theater" exception. Especially because it's a commercial broadcast. I'd go so far as to say that it's no different than other contexts in which lying is illegal (insurance fraud, etc).

wyager• 11 years ago

They never said it was illegal. They just implied it. "Prohibited" doesn't necessarily mean "illegal".

thanksgiving2• 11 years ago

I guess I can say that by reading this statement you are hereby prohibited from ever suing me for any reason in any court of law. That doesn't mean you can't still sue me though...

sologoub• 11 years ago

We need more posts like this and some education to the public. Until people are educated about their rights, crap like the NFL disclaimer will pass for facts.

Shivetya• 11 years ago

the public? Hell how about educating google/youtube who do take downs against videos that don't even infringe. I can imagine the fun they will have Monday with people uploading content

geofft3• 11 years ago

Google is legally obligated to do so by the DMCA's safe-harbor provision (otherwise they lose their safe-harbor status). The problem is with the people who request the takedowns.

In particular, the DMCA (17 USC 512) requires that, in the takedown notice, the sender must state that they have a "good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law", and anyone who "knowingly materially misrepresents under this section that material or activity is infringing" is liable for damages, both to the person who posted the not-actually-infringing content, and to the service provider in their act of taking down and reinstating the content.

This should be a safeguard, and a sufficiently enthusiastic legal team ought to be able to make the argument that there is a lot of knowing material misrepresentation going on. (It's hard for robots to have good-faith beliefs!) But I think very few people have been trying this argument in court. The EFF has been involved in a few, relatively tiny cases, which seem to have been successful, but nobody's been fighting this at scale.

https://www.eff.org/cases/lawrence-lessig-v-liberation-music

http://en.wikipedia.org/wiki/Lenz_v._Universal_Music_Corp.

17 USC 512 is pretty readable: I'd recommend reading through it so you understand what the law is and how best to use it to our ends.

http://www.law.cornell.edu/uscode/text/17/512

marincounty2• 11 years ago

I wish Youtube would take my videos down? When Google couldn't leave a decent login in system alone, and had to tie it to "I want it in my name daddy!", I can't access my account to delete my old videos. Yea, I tried all the stuff they recommended, but I can't access the videos. I contacted Google, but they didn't have a clue, and told me to go to the boards. It was a very polite email. (I used Youtube as a personal diary of things I need to do, or projects that needed further work. One video had a product brand name in it and gained attention. I never thought they would be kidnaped? They are boring videos, but there's one I want off for multiple reasons).

icantthinkofone3• 11 years ago

The disclaimer IS fact. That they may play it up for more than what it is, as do others, is a different story.

ctyrider• 11 years ago

Who cares about Super Bowl anyway. Stopped watching this pointless commercialized spectacle years ago.

bryanlarsen• 11 years ago

It's OK to think that. saying it makes you a snob.

https://news.ycombinator.com/item?id=8972179

psychometry• 11 years ago

Lots of people care about the Super Bowl. It'll be the most watched TV program of the year. Does that answer your question, or was it intended to be rhetorical?

evincarofautumn• 11 years ago

Yep. I enjoy watching football well enough, but the rampant consumerism around the Super Bowl leaves a bad taste in my mouth. I’ll go to a game day party mainly to hang out with my friends and eat snacks.

mikeash• 11 years ago

I don't care about it in the least but I still thought the article was interesting. It's OK if you don't like sports, but don't think it somehow makes you superior.

jpindar• 11 years ago

I'm sure there are many things mentioned on HN that you do not watch or otherwise participate in. This is the only one you have chosen to comment on, so it would appear that you care about it.

EpicEng2• 11 years ago

Millions upon millions of people. Tens of millions actually. Highest ever was ~111 million people. So, sorry, but you don't represent the majority here, and we don't care what your opinions on football are.

kbutler• 11 years ago

111 million people is not the majority of the U.S., much less the world. Compare what the majority considers real football: the world cup (500 million to 1 billion?) Or the moon landing (14% of world population at the time or 530 million). http://en.m.wikipedia.org/wiki/List_of_most_watched_televisi...

Also, compare YouTube for really big numbers...

NeutronBoy• 11 years ago

Relevant XKCD

http://xkcd.com/1480/

gnoway• 11 years ago

This article links to an older Ars article, which links to Wendy Seltzer's blog, which appears to be offline.

Here's the referenced blog post:

https://web.archive.org/web/20140331144544/http://wendy.selt....

And here's an archive of the entire series of events:

https://web.archive.org/web/20140708110042/http://wendy.selt...

dhekir• 11 years ago

I tried clicking on the Youtube link inside the Internet Archive to see the clip, but all I get is a message "Sorry for the interruption. We have been receiving a large volume of requests from your network. To continue with your YouTube experience, please enter the verification code below." and an archived sequence of re-captchas that take me nowhere.

Is there a way to actually see the clip?

personlurking• 11 years ago

I copied the link location then removed the unneeded part https://www.youtube.com/watch?v=a4uC2H10uIo

Orangeair• 11 years ago

How is it that they can stop you from displaying it on TV's larger than a certain size, then? I've always been confused about that.

jedberg• 11 years ago

Technically anything over 55 inches is considered a public performance. It's leftover from an old law:

http://www.law.cornell.edu/uscode/text/17/110

zerocrates• 11 years ago

The NFL holds copyright in its broadcasts of the games, and copyright law gives the copyright owner the exclusive right of public performance and public display. However, the Copyright Act provides an exemption allowing for "performances" of radio or broadcast/cable/satellite TV without violating copyright.

There are some fairly obvious restrictions to the exemption (for example, you can't directly charge people to see the broadcast), but also some surprisingly specific ones, and there's where you start getting into TV screen sizes:

if the performance or display is by audiovisual means, any visual portion of the performance or display is communicated by means of a total of not more than 4 audiovisual devices, of which not more than one audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches, and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space

(Note: the above are rules for bars/restaurants. There are different rules for other establishments, and much more permissive ones designed to cover private homes and parties)

rayiner5• 11 years ago

The first point is wrong. Retailers don't avoid saying "Super Bowl" because they think it's illegal to say the phrase, but because an advertisement is an offer to sell goods, and mentioning someone else's trademark in that context always creates some possibility of confusing people into thinking that the trademark-holder is the source of, or is authorizing or endorsing, the products being advertised. Creating that confusion about the origin of the product is a trademark violation.

foobarqux3• 11 years ago

Which would make it against the law and therefore illegal. However, I think it's more accurate to say retailers don't mention the word Super Bowl because they are likely to be sued, irrespective of whether there is a credible claim, trademark or otherwise. I think in the vast majority of cases there is no such legitimate claim.

The same situation occurs with the Olympics. The IOC sues entities not because they are worried that someone is going to get confused about their brand but so they can charge those entities for using it in their promotions.

pbhjpbhj4• 11 years ago

Which would make it against the law and therefore illegal. //

Worth remembering it's tort not crime.

[Not that you're saying it's criminal, just that sometimes illegal is taken to mean criminal whilst torts and such are described instead as unlawful.]

tomarr• 11 years ago

I think the Olympics is slightly different, the IOC normally requires host countries to enact laws giving them special privileges for the event.

"Since the Sydney Games in 2000, the International Olympic Committee (IOC) has required bidding governments to commit to introducing bespoke legislation to offer a further layer of legal sanction." http://www.theguardian.com/sport/2012/apr/13/olympics-2012-b...

"Expressions likely to be considered a breach of the rules would include any two of the following list: "Games, Two Thousand and Twelve, 2012, Twenty-Twelve". Using one of those words with London, medals, sponsors, summer, gold, silver or bronze is another likely breach."

pbhjpbhj4• 11 years ago

and mentioning someone else's trademark in that context always creates some possibility of confusing people //

It's not 'possibility' it's 'likelihood' of confusion that is considered, amongst other factors - eg http://www3.ce9.uscourts.gov/jury-instructions/node/244.

The NFL own the RTM (eg serial number 78688906, 77182909, 76572704) and they use it to sell merchandise, TV broadcasts, and clothing respectively. The problem they face is that bowl is a generic term for a [sports] competition (cf http://www.merriam-webster.com/dictionary/bowl), and super is also standard language. You can't use trademarks to prevent a person describing something. Moreover when I say "buy my beer to drink whilst you watch the Super Bowl" I'm not using the trademark, I'm using a description of a sports event. If I said "buy my beer to drink whilst you wear your Super Bowl t-shirt" [assuming the owners have registered the mark for clothing] then I'm using the trademark, but I'm still using it to describe the TM owners goods, quite clearly, and so there's no confusion.

Clearly one could create confusion: "drink our Super Bowl beer" uses the term as if it were a trademark, and moreover as if it were the advertisers trademark.

Isn't "super bowl" just a description of a large sports event ; that would seems to lack the distinctiveness normally required of a trademark for anything that's normally related to sports events. The 2 live marks incorporating "super bowl" would make it appear the the USPTO consider use of the term separate to the NFL's mark as allowable [but I'm not sure they've been properly examined as yet].

gonzo• 11 years ago

the other issue here is nominative use. Using trademarks as nouns can lead to dilution. This plays some into your "descriptive" complaint:

Isn't "super bowl" just a description of a large sports event ; that would seems to lack the distinctiveness normally required of a trademark for anything that's normally related to sports events.

But registration is prima facie evidence of validity. Quoting 15 USC 1507(b):

A certificate of registration of a mark upon the principal register provided by this Act shall be prima facie evidence of the validity of the registered mark and of the registration of the mark, of the registrant's ownership of the mark, and of the registrant's exclusive right to use the registered mark in commerce on or in connection with the goods or services specified in the certificate, subject to any conditions or limitations stated in the certificate.

rayiner5• 11 years ago

It's not 'possibility' it's 'likelihood' of confusion that is considered, amongst other factors

I used "possibility" deliberately. "Likelihood of confusion" is a factor in the legal test for trademark infringement (and generally the most important one). But the mere possibility of confusion might be enough to get a retailer to steer clear of a trademark as a practical rather than legal matter.

rtpg• 11 years ago

Moreover when I say "buy my beer to drink whilst you watch the Super Bowl" I'm not using the trademark, I'm using a description of a sports event

I think you would also have a difficult time convincing a judge you were not talking about the NFL championship. Application of the law is rarely a "check the dictionary, guys, he's technically correct" thing. Especially when it comes to things like trademark violations (where it's about confusion to the general public)

Crito• 11 years ago

You assume that all retailers have an accurate understanding of the law. Obviously this is not the case.

jgalt2122• 11 years ago

The worst practitioner of these practices in my opinion is Cusip Global Services.

They say you can't label column in your database "Cusip" without signing a license agreement with them. Furthermore, such license agreements make you force similar licenses upon all your business partners.

MichaelGG• 11 years ago

Citation/link/further information?

jgalt2122• 11 years ago

general info:

https://www.cusip.com/cusip/cgs-license-fees.htm#cgs-licensi...

as to forcing other business partners to assert that they also are Cusip license holders, I have seen and been asked to sign agreements with such clauses attached.

ams6110• 11 years ago

LOL never heard that. Many databases and reports I developed for an investment banking firm in the 1990s were infringing I guess....

erehweb• 11 years ago

Re "Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL's consent is prohibited." - maybe someone should write to the NFL to ask their permission to talk about the game with their friends? Or send in a picture their kid drew and ask if they can put it on their fridge? What would they say?

dionidium• 11 years ago

Wait a minute. Aren't they really saying that you cannot use their accounts and descriptions of the game, which are protected by copyright, for unauthorized purposes? Everybody assumes they're telling you not to describe the event, but that's ludicrous. You simply can't repurpose their televised descriptions of the event.

icantthinkofone3• 11 years ago

You didn't copy the part where they say you have the rights to private use as in conversations with anyone you choose.

phkahler• 11 years ago

Most americans don't even have the ability to record the show. I do, and might if I feel like it, but to be honest it's not worth the disk space. It's a live event so it's just not exciting after the fact.

rickdale• 11 years ago

This was informative! I always wondered about those statements at the beginning of the games, but never thought about them longer than the intro. I wonder though, even with everything in the article, why Stephen Colbert danced around the Super Bowl by mocking it with his Superb Owl coverage. Seems like the kinda guy/show that would have just used super bowl and exposed what this article is saying. Anyways, I find the super bowl obnoxious, but otherwise love football and most sports.

http://thecolbertreport.cc.com/videos/gzw6pe/superb-owl-xlvi...

sandworm3• 11 years ago

Be careful when taking legal advice from websites. Ethical rules would probably bar an attorney from writing such an article. (Advice to potentially out of jurisdiction and/or unknown clients, online advice is a tricky thing for bar associations.) I'm not saying that anything is incorrect, just that this sort of advice has consequences.

I would add to the article that while copyright may not limit such speech, contract law is a totally different matter. Check the fine print of you cable contract and/or your NFL package subscription. Even your superbowl tickets (tickets are contracts) will probably have limitations on how you can use NFL content and marks. Everyday citizens may perhaps use the term "super bowl", but someone in a contract with the NFL is not an everyday citizen. The NFL can always come after them for breech of contract, triggering liquidated damages clauses.

This is why many broadcasters avoid using NFL marks even where they have the right to. They have signed contracts in exchange for, perhaps, highlight reals, interview opportunities or other such content from the NFL. This then binds them to whatever speech-limiting terms the NFL may include.

rayiner5• 11 years ago

Be careful when taking legal advice from websites. Ethical rules would probably bar an attorney from writing such an article.

Ethical rules bar giving specific legal advice online, not generally describing the law. Tons and tons of attorneys post general advice about what you should and shouldn't do. To pick a random one that's the first hit on Google: http://www.bpmlegal.com/tmdodont.html.

sandworm3• 11 years ago

General descriptions are fine, but saying that a particular person (ie "you" or "the public") is allowed to do something in relation to another (the NFL) boarders on specific advice. There is a difference between explaining the concept of "fair use" and saying that a particular use is fair.

On second thought I do think the article made a mistake. Sure, you can VHS the superbowl, but good luck doing that on a modern TV/cable setup. Recording an HD copy will likely involve bypassing encryption or other content protections. Saying that anyone can "tape" the event is an overstatement. Some "taping" is cool, other "taping" may violate any number of rules.

sgustard• 11 years ago

Great point. I also assume that, like every website I visit or product I buy, the NFL could bind me to a twenty-paragraph terms of service agreement just for watching their content.

icantthinkofone3• 11 years ago

Sherwin Siy is the vice president of legal affairs at Public Knowledge.

geofft3• 11 years ago

And he's even listed at http://www.dcbar.org/. Thank you for pointing out that this claim was easily testable instead of letting people get by with "probably". :-)

jrochkind1• 11 years ago

http://en.wikipedia.org/wiki/Copyfraud

smurph• 11 years ago

They don't say anything is illegal, they say it is 'prohibited'. They don't say who it is prohibited by, and since it's clearly not the federal government you have to assume it's just prohibited by the NFL itself. Of course nobody has to listen to a goddamn thing the NFL says, so why include the message? It's likely a CYA thing on their part, since it gives them the power to essentially disown any event or analysis that is related to their broadcast. Also worth noting is how the NFL is obsessed with law enforcement culture. Lots of the league employees are former police and FBI, so there is a good chance they actually think they have some kind of authority over what a person does or says in relation to the NFL.

Spoom• 11 years ago

Businesses don't say "big game" because saying Super Bowl is illegal. They say it because even if they're legally in the right, the NFL could easily bankrupt them in court, and it's not worth the risk.

qeorge3• 11 years ago

Or its because the advertisers want to get more than one use out of the ad?

The Super Bowl is not the only "big game". In fact its not usually even a particularly great game, and its never a rivalry. So saying "Big Game" instead of "Super Bowl" means they can use the ad again, and maybe even for another sport!

Or its a conspiracy theory. That works too.

macbony• 11 years ago

The Super Bowl is the only "Big Game" they refer to in the ads. Sure there are other "big games", but these are Super Bowl ads pure and simple.

qeorge3• 11 years ago

You're saying there is no other event that Dorito's could possibly use an ad about "The Big Game" for? That's incorrect, and that's my point.

Why make an ad you can only use once, when you could easily tweak it and be able to reuse it? Like you said, its not like anyone won't know you mean the Super Bowl, when you're talking about the big game on Super Bowl weekend.

The NFL wants you to think these things are illegal

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