Baseball Musings: Fair Usage

March 19, 2007

Fair Usage

I've been wondering about fair use of TV video for use on my blog. If I'm watching a game and see something I want to comment about, can I take 10 second of video off my DVR, post it to the internet and use it in my blog? In the case of NESN, no.

No highlight of any Game (or any NESN content) may be used on the Internet, cell phones, wireless devices or any other electronic medium under any circumstances.

Update 3/21/2007: The NFL is in trouble over this.

Baseball Musings is holding a pledge drive in March.

Posted by David Pinto at 05:54 PM | Broadcasts | TrackBack (0)

Comments

Just because NESN says no, doesn't mean that you can't. I would suspect that the usage of such material, if done in a reviewing/critiquing fashion, would fall under fair use.

Of course, that doesn't stop NESN from suing you to discourage you. I also may be completely way off base hear and it may actually be illegal.

Posted by: jeremy at March 19, 2007 06:28 PM

Posted by: scaught at March 19, 2007 06:54 PM

Doing what you proposed in your hypothetical clearly falls under the Fair Use doctrine. I do not believe NESN would be successful in seeking a legal remedy if you were to do use content as described.

Posted by: Jayson Billington at March 19, 2007 07:15 PM

Fair Use is very complicated and very inexact, so it's almost surely not worth challenging NESN's claim. That said, I know a little about it (though I'm not a lawyer). Factors in your favor:
* a 10 sec clip is a very small portion
* it's unlikely your posting would adversely affect NESN's profits

Factors against you:
- you have ads on your site, so your use is arguably for 'commerical purposes'
- distribution by you is very wide and unregulated (as opposed to, say, a college course web site only for enrolled students)

My bet is that a very short clip is legal, but like I said, I'm sure it's more trouble than it's worth.

Posted by: James at March 19, 2007 07:49 PM

NESN doesn't get to define fair use -- however, if you subscribe, there may well be some kind of contractual notice (that you haven't noticed) that would operate to legally restrict the use of what would otherwise be fair use (if you got the material another way.)

As to whether it's fair use otherwise, I'd say James is correct. A short clip would almost certainly be fair use, but not worth the fight, unless you can talk to Electronic Rights people into taking the case pro bono. (Even then, maybe not worth the trouble.) And a court decides whether a use is fair by balancing a lot of factors, and you can't always trust a judge to balance the factors in an individual case the way you'd like.

Posted by: Capybara at March 19, 2007 08:23 PM

According to every baseball game I've ever listened to, as long as you get the expressed written consent of the comissioner of Major League Baseball, you should be OK.

Posted by: Brian at March 19, 2007 09:03 PM

Whatever the ins and outs of copyright law might be, I just don't get this. NESN is part owned by the Sox, who presumably had a say in this decision. But the effect will be a dramatic reduction in airtime for the Sox in and around their home market. How can it be good for the franchise, to NOT have highlights on the local news and other programs? I'd think that the more times people see Big Papi hit a walk-off home run, the better for the Sox, right?

After decades of trying to limit radio and TV broadcasts of games on the mistaken theory that fans would stop buying tickets, the Lords of Baseball have prospered in an era of virtually unlimited TV. They should have learned by now that more exposure brings greater awareness, which boosts the sport's fan base. Have they now suddenly unlearned that lesson? This is a big mistake!

Posted by: jvwalt at March 19, 2007 09:30 PM

Fair use of 2 minutes for TV and Radio news stations, and excluding such use by internet news groups is discriminatory and not likely to withstand any legal challenges on fair use. That said, I am not a lawyer and who wants to get bogged down in court. I doubt showing a 1 minute or less clip on your site from time to time would result in any legal action by NESN, and if it did bother them they would probably just give you a notice to not use it and if you did not withdraw it, then and only then would they consider legal action. My bet is they would not want to open up that can of worms. The internet sites they may be targeting or protecting are mlb.com and espn, I believe they get paid for the highlights being shown on these sites so they do not want to jeapordize this revenue stream by authorizing fair use by other internet media, and are looking to scare off those who would be considering showing highlights on a regular basis. Any legal action by NESN would most likely be prompted by complaints from mlb.com and espn, and unless you regularly show highlights of games, they are unlikely to be disturbed. The concern most likely is with highlights of Dice-K's games in the regular season being shown on the internet for the Japanese market, depriving mlb.com and nesn of additional revenue from Japan they figure they should get from japanese subscribers.

Posted by: Paul Todd at March 19, 2007 09:36 PM

Is it worth the hassle? If you put clips up, sooner or later MLB, ESPN, NESN, or someone else is going to object. If you're lucky, they'll contact you directly, but there's no incentive for them to do so. It's easier to just send a takedown notice to your host. What are the chances your host contacts you to resolve the issue before they take your site down? I wouldn't bet on it.

Posted by: gordon at March 20, 2007 02:18 PM

the MLB, NBA and NFL are trying to strong arm people out of their Freedom of Speech. we (the people) better stand up for your Fair Use and Parody rights or they'll continue to get trampled in the name of league revenue sharing and image control.

honestly, i hope you show the clips you deem relevant, get sued, get a kick ass pro-bono team of 1st Amendment lawyers, win and get a MASSIVE spike in traffic, respect and $$$ out of this.

Posted by: JP at March 20, 2007 03:36 PM

Good luck fighting against the big boys. MLB & their ilk keep a mighty tight rein on those billion dollar tv revenues!

Posted by: Carrousel Yacht at March 20, 2007 06:44 PM

I spoke to a rep from MLB advanced media and they told me that we are not allowed to use video or audio of any kind. There is no fair use policy that allows it.

It bummed me out because I really wanted to use audio clips on our MLB podcast www.bigleaguebaseballreport.com

Posted by: Joe Aiello at March 20, 2007 09:33 PM

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