But Gaby Darbyshire’s response indicates that Denton plans to argue something more interesting: Because everyone was talking about the clip it somehow transformed itself into news, and can therefore be published as fair use. The problems with that argument are that (1) Denton helped turn it into news, and (2) there is a lack of case law supporting it. Indeed, the most obvious case on point works against Denton, that being Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997) (unlicensed broadcast of Reginald Denny beating during LA riots not fair use). So I don’t think this fair use argument will work if CSI decides to actually sue.

In Denton’s favor, it will be difficult for Scientology to show substantial damages, since the purpose of this video is by their own admission non-commercial, not to mention four years old. And while it’s obvious they’re being “damaged” in the sense that it’s airing is bad publicity for them, bad publicity isn’t calculated as damages in copyright law. Scientology can show enough damages to keep the suit from being dismissed, however, and since they’re not rational actors in the economic sense (they’ll spend $1000 in legal fees to get your $1 in order to either set a precedent or brand you a criminal), the possibility that they would bring a complex suit to bleed Denton of legal fees is real.

Complicating the constitutional issue somewhat were a series of contracts presuming that the players’ names were indeed valuable: The MLBPA licensed to MLB the rights to their names for $50m and MLB in turn licensed to various entities for $2m a pop. The sole dissenting judge agreed with the majority’s free speech rationale, but argued that it should be held to the terms of its agreement with MLB, since the status of those rights were uncertain at the time it entered into the agreement.

While the opinion’s reach is limited to the Eighth Circuit, it seems unlikely that MLB–or any other pro sports league (most who were amici in the MLB case)–will litigate this issue elsewhere, having been shut down on the main issue by four judges total. Then again, a whole lot of contracts for a whole lot of money just became moot, so who knows what’ll happen–perhaps litigation to hash out the preexisting contracts. But the upshot is a breath of fresh air–the names and statistics produced by professional sports figures can no longer be owned and licensed because they belong to everyone.
ars technica story with deeper background on the case here.

Let me make clear that I’m not expressing sympathy for these men–they should be held accountable. I do find some aspects of this operation disturbing, however. For one thing, like Law & Order: SVU, the show is getting a ton of ratings mileage from the very thing it is lordly sneering at, the titillation inherent in the possibility of an illicit sexual encounter. Not that all its ratings derive from this, but it’s hard to conclude otherwise based on the thin content offered up by the show. The show is just one gotcha moment after the last, with Stone Phillips essentially prying out a sentencing allocution from the accused immediately before they’re arrested. It’s exploitation made worse by the absence of any socially redeeming features … made even worse because the show hinges on the proposition that it furthering a social good (alerting a community to potential criminals is a good, but the national audience suggests a broader purpose–”humilitainment,” as Defamer puts it).

And this brings me to my second problem–by formally assuming a law enforcement role minus the legal wherewithal, NBC jeopardizes the local prosecutor’s ability to convict any of these guys. So they’ve stopped bothering. From an April 2006 Washington Post story [no link, story from Lexis]:

Von Erck said his group’s members [the group being Perverted-Justice.com, which worked alongside NBC for the Catch a Predator series] have helped identify hundreds of alleged pedophiles through Internet stings. The group, which began in 2002, also claims to have provided police with information that led to 100 arrests and 50 convictions in 25 states. “We turn up great evidence that stands up in court,” he said.

But that claim is disputed by the group Corrupted Justice, whose mission includes counteracting the work of Perverted Justice, and is based near Ottawa. A spokesman for Corrupted Justice said much of Perverted Justice’s efforts are counterproductive because most of the people it exposes suffer no legal consequence and remain free to prey on children. Perverted Justice’s members also have mistakenly identified and harassed innocent people but are not held accountable because they operate anonymously, typically using computer screen names, Corrupted Justice spokesman Scott Morrow said.

“The fact is, these people are amateurs,” Morrow said. “They’re volunteers, with no official training, no training in law enforcement, no training in the rules of evidence, no idea about maintaining evidence so it can be used in court. They shop this stuff around, and most of the time local law enforcement tells them, ‘We can’t use it.’ ”

Morrow said NBC’s involvement with Perverted Justice is particularly troubling: “They’re manufacturing the news, rather than just reporting it. They’re not only working with untrained, anonymous vigilantes, but now they’re paying them, too.” He said NBC could do stories on what police departments and the FBI are doing to hunt down pedophiles without resorting to “questionable” tactics. [emphasis added throughout]

Shortly after that story ran, the district attorney from a Dallas suburb where a large chunk of NBC stings took place refused to prosecute any of the men because many of the cases were “tainted by the involvement of amateurs.”

Chris Hansen (the other Stone Phillips), has stated that 117 convictions or guilty pleas have resulted from 286 arrests during the show’s 3 year run, but it would be difficult to check those possibly self-serving numbers. Even so, that’s not a fantastic clearance rate. And the fact that more than half the suspects walked suggests that the half that didn’t walk may have had inadequate counsel, since the facts arising from these stings are basically identical.

Then there’s a third problem: What happens when NBC, imbued with faux-muckraking self-importance, forages past their already sketchy ethics boundaries? In the same Texas district mentioned above, where the prosecutor refused to charge any of the suspects, one answer is apparently suicide. A $105m lawsuit was filed against NBC by the sister of a Texas prosecutor from a neighboring district who chose to kill himself rather than guest star on NBC.

Louis “Bill” Conradt Jr., who did not go to the Murphy sting house, shot himself in the head after Murphy police and other North Texas officers forced their way into his Terrell home in November. NBC was outside with cameras.

Conradt didn’t even walk into the sting house–he stayed home after allegedly soliciting sex from an undercover posing as a 13 year old boy. Under Texas law, a suspect does not have to show up–the deliberate planning of a meeting alone is sufficient for a conviction. But this raises a problematic question concerning the lack of an actus reas. How does one go from typing his dirty thoughts to a stranger to suicidal in a manner of an hour?

The issue in the case will be negligence–whether suicide was a foreseeable result of NBC’s actions. Where I might answer the question in the negative if it regarded one of the suspects who showed up at the sting house, I’m less sure how I’d answer the question where, as here, it regards a suspect who did not show up, was about to endure a raid on his house by the police and media, and whose innocence was more probable.
Finally, there’s the overarching (and thorniest) problem where televised justice and its lower due process standards competes with the judicial system. While TV can’t put you in jail, it’s probably true that it could ruin the life of an innocent in a manner worse than actual imprisonment could not–especially where an infamously heinous crime such as pedophilia is concerned, and the matter is publicized nationally. The initial publication of a story is often also the end of the story–NBC’s primetime newsmagazine show might be seen by a million people, few of whom will ever see those suspects again.

This post is not to suggest regulations on any party or industry–I realize that behind door one is more than a little First Amendment friction. But the problem of pedophilia could certainly be tackled by NBC in a manner far less exploitative and protective of individual rights.

Another story this past week reminded me of the MLB thing. A reporter was ‘live-blogging’ a NCAA baseball game at the University of Louisville, and was asked to leave the press box by school officials, who viewed the blogging as a “live representation” of the game, and it therefore in conflict with MLB’s right to license various revenue streams. See here for original story, and Wendy Seltzer’s blog for commentary.

I really hope the newspaper fights this, but I guess we’ll see. A few years back, some company was reselling golf scores at PGA events (by distributing the information to pager subscribers); the 11th Circuit sided with the PGA(defending against an anti-trust claim), based on a sweat of the brow theory, since golf scores have to be physically gathered by PGA officials, unlike most sports where the scoring occurs in one place, where the crowd is entirely assembled. There were dozens of amici lined up to argue press and speech freedom in this case, but the court was deliberate in defining its case as only implicating the Sherman Act. 

That result doesn’t really square with the Second Circuit’s take on what was the nearly identical factual issue, if not the same claim. In NBA v. Motorola, Motorola was finally permitted to resell basketball scores to its subscribers after the court distinguished it from the International News Service ‘hot news‘ doctrine. The only real difference between PGA and NBA, besides the claims brought, is the method by which the scores are gathered.  This seems to be a silly distinction, as some human is always compiling the score at sporting events–the law can’t really hinge on whether the method used to procure the score is difficult, can it?

But while all these cases appear to share a similar bond–a short-sighted and zealous sports event license holder using dubiously applicable means to shut down a competitor–the live-blogging incident rings the scariest, because the competition the NCAA fears is simply news (And what else can they restrict–my telephone call to my mom describing the action before me? And what if a newsworthy event only tangentially related to the sports action arises during the game–do I have to wait until the game ends to report that a spectator was hit with a ball and was rushed to the hospital?)

I suspect the NCAA will get away with this, either because the newspaper is too poor to proceed, or because the NCAA is even right on the law–I don’t think there’s anything that obligates or guides the NCAA or its schools as to whom they may issue or withhold press passes, besides basic civil rights laws and its own best interests. Live-blogging events (not just sports–concerts, political speeches, etc.) are fated to become more common, so I doubt we’ve seen the last of this issue, even if this one doesn’t wind up in court.  And I suspect it’ll really flare up when a consolidated media empire purchases its own live-blogger to compete.  Some already supply them (‘GLOGs’).

And while prior restraint wouldn’t apply where the restrainer is a non-governmental entity, it seems unholy that news could be routinely suppressed in this manner.

It was obscene to show Prince, a HOMOSEXUAL person though a sheet, as to show his siluette while his guitar showed a very phalic symbol coming from his below-midriff section.  I am very offended and I would preffer not to have showed it to my 4 children who love football.  One of them has opened to be a quarterback and now he will turn out gay.  I am actually considering to check him for HIV.  Thanks CBS for turning my son GAY.
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The part of his act in particular that comes to mind it when they pull up a big sheet and his shadow is cast upon it.  He is holding a guitar and in the shadow it looks as though he has a large penis with pitchfork on the end.  It was not only profane it was sadistic!
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During Prince’s rendition of Purple Rain, which I think is a really great song, there seemed to be a shadow puppet of his (penis).  The sheet? that was the backdrop seemed to be (stained?) with something (semen?) My children were watching and now I have to explain to them what a wet spot is on a cum covered sheet. Thanks CBS.
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I find it highly unacceptable to have a family watching sporting event only to find Prince stroking, manipulating and fondleing his guitar being the curtain.  This image only made him look extremely large which made the rest of us feel small, and unable to preform this evening.