Does the law represent..
(a) A best attempt at codifying societal values, with an eye toward fairness and pragmatism, on a collection of issues and behaviors?
or
(b) The bargained result of groups vying for structural mechanisms to protect and advantage them, a product mediated more by power than ethics.
We’ll come back to that question in a moment.
So, I was flabbergasted when I ran across the story of the NFL’s crackdown on churches throwing super bowl parties. After all, whatever the NFL’s legal reasoning, it’s hard to imagine the economic thinking behind the call. The financial loss to the NFL from these events is minor, and the PR costs to repair the inevitable damage this causes will be high.
I’d be more sympathetic if the NFL was only clamping down on the use of the trademarked “Super Bowl” name in promotional material. Making a habit of turning a blind eye to trademark infringements risks losing the trademark, and so being unmitigated spoilsports with “Super Bowl” cease and desist notices is unavoidable.
But the NFL boldly and daftly marched on, also demanding compliance with arcane rules about screen size (55 inches), even when the events were run by nonprofit religious groups charging only enough to cover the costs of the gathering. And that, well that’s stupid. While the NFL has to police its trademarks, it doesn’t need to dogmatically police its copyrighted material in the same manner. If the NFL decides to cut a group some slack and not harass and prosecute them for displaying copyrighted material, it doesn’t risk losing or diluting its copyright.
I don’t want to say that the NFL is the only stupid party here. Indianapolis Calvary Temple’s business manager, Bill Kaler, is quoted as saying, “I didn’t realize the Super Bowl was a copyrighted thing.” Really? A church savvy enough to have a “business manager,” and yet it hadn’t occurred to them that just because a show is on television doesn’t imply that it’s in the public domain? I wonder if this also ruins some master plan they may have hatched for recording and selling tapes of movies running on cable.
Yes, there’s plenty of stupidity to go around. But hey, we’re talking about the Super Bowl (umm… Super Bowl ™), and maybe deep thoughts around intellectual property rights is a bit much to expect.
But me, I’m curious, so I decided to dig up just what law actually mandated the screen size and other restrictions required for the copyright exemption on public viewings. And here’s the answer: 17 U.S.C. Section 110. You can read it here.
What struck me while reading through it was just how many peculiar loopholes and provisions there are for different interest groups. Hint for churches who have their hearts set on big-screen super bowl mania: have you considered reconstituting yourself as an agricultural fair or veteran’s organization? While it might not be my call, I understand the position many churches have taken, finding it untenable to model themselves on the traditional exemption route of serving alcohol and making game watching a regular practice at their institution. But thanks to all sorts of interest groups, you’ve got options—ridiculous, senseless, bizarre options—that only make sense when you jettison notions of the law being shaped by thoughtful deliberation and principle. And that, finally, brings around and begs the question to ponder I started with.
