nfl – Techdirt (original) (raw)

Want Access To Every NFL Game? It’ll Cost You, Thanks To Fractured Streaming Deals

from the football-football-everywhere dept

As we’ve covered the era of cord-cutting from traditional cable television packages and the rise of streaming platforms, one of the areas I have focused on is the world of live sports. And in the world of sports, the NFL is king. If you were to look up the most viewed broadcasts on any given year, it’s an exercise similar to Where’s Waldo just to find a broadcast that isn’t an NFL game. And we have covered all kinds of deals the NFL has struck with streaming platforms recently, with a particular emphasis on the plural “platforms”. NFL streaming for sports is so fractured at this point that ESPN recently came out with an app specifically to help the public figure out just where in the hell they have to go to watch a particular game.

But knowing where to see a game doesn’t mean you have access to it. For that, you need to be subscribed to the relevant streaming platform. So what would it cost across all of those platforms if you wanted to have access to every single NFL game this coming season? Well, as it turns out, thousands of dollars.

This season’s streaming-only football viewers are going to need access to seven different streaming platforms, which can cost over 1,700fortheyear.Fanswhohavecableinsteadwillneedninedifferentstreamingplatformsorchannels,whichcanrun1,700 for the year. Fans who have cable instead will need nine different streaming platforms or channels, which can run 1,700fortheyear.Fanswhohavecableinsteadwillneedninedifferentstreamingplatformsorchannels,whichcanrun2,500 or more for the year.

Because there are now more bidders for NFL games’ rights, the prices the league was able to negotiate went up. The NFL now makes roughly $10 billion a year from TV deals, up from about $3 billion in 2010.

Wondering about the breakdown of these costs and how MarketWatch got its figures? Well, its post has a helpful dual cheat sheet for you. Here is what it takes for cord-cutters:

And here is what it takes if you have a cable subscription, which actually costs you more.

Now, how many people out there actually want to be able to watch every, or any, single NFL game they choose throughout an entire season? Very few, I am sure. But one constant over the past several years has been a game I wanted to watch, either my local Bears or just another good game out there, being unavailable to me because I’m missing one platform or another. This is first world problem stuff to be sure, but it’s useful to compare what the costs would be streaming another sport.

Let’s take baseball. I’m a Cubs fan (and a Bud man). Having access to every single baseball game this past MLB season is actually my current reality. I have that access. And, in comparison to the NFL’s requirement to subscribe to seven platforms for nearly 2kayear,fortheMLBseasonIonlyneedthreesubscriptions.IamanMLB.TVsubscriber,whichgetsmeeveryoutofmarketgame.That’s2k a year, for the MLB season I only need three subscriptions. I am an MLB.TV subscriber, which gets me every out of market game. That’s 2kayear,fortheMLBseasonIonlyneedthreesubscriptions.IamanMLB.TVsubscriber,whichgetsmeeveryoutofmarketgame.That’s150 for the year. Then I have to subscribe to Marquee to get the in market Cubs games. That’s 120fortheyear.Finally,becausetheWhiteSoxwereonaregionalsportsnetworklastyear,IhavetoaddinmyYouTube.tvsubscription,whichcomesto120 for the year. Finally, because the White Sox were on a regional sports network last year, I have to add in my YouTube.tv subscription, which comes to 120fortheyear.Finally,becausetheWhiteSoxwereonaregionalsportsnetworklastyear,IhavetoaddinmyYouTube.tvsubscription,whichcomesto875 per year. That’s 3 platforms at 1,146/yearupagainst7platformsat1,146/year up against 7 platforms at 1,146/yearupagainst7platformsat1,758/year. I would argue even now that MLB’s blackout rules and RSN deals already make it too complicated for people to find the game they want to watch, but it’s less than half the accounts and only two-thirds the cost of what it takes to get the same experience for the NFL. And that’s before I even mention that the NFL season consists of 272 games versus an MLB season’s 2,430 games. It’s also notable that a simple VPN service would obviate the need for the YouTube.tv subscription entirely.

And even after all of that, you have to take into account the multiple disputes in the streaming space that have put people’s ability to watch these NFL games at risk.

In August, a judge blocked the launch of Venu Sports, a joint streaming venture from Disney Warner and Fox, for the entertainment companies attempting to “exercise near-monopolistic control” over the industry.

The judge sided with rival steamer FuboTV and issued a preliminary injunction that blocked the $42.99 a month bundle, sending FuboTV’s skyrocketing. Shares of FuboTV are up nearly 38% over the last month.

But that’s not the only sports TV spat in the news. ESPN’s and Disney’s other sports channels have been dark on DirecTV since Sunday night after the two sides were unable to reach an agreement on carriage fees.

As of now, the NFL is making gobs of money and viewership still has the league as its king. But at some point, all of this fracturing and rising costs are going to have an effect. Most people just aren’t going to subscribe to that many streaming services in any circumstance, let alone purely to be able to watch NFL games. And if they suddenly can’t watch their local team, the fandom will get pissed off about that, which isn’t good for business.

Whether we have crossed that threshold yet we do not know. But the first time someone you know can’t find the game they want to watch, I promise that you’ll hear about it.

Filed Under: cable, cord cutting, streaming
Companies: nfl

Vegas Police Union: Facial Recognition For Thee, But Not For We

from the sweet-irony dept

Way back in 2020, Tim Cushing wrote about the Las Vegas police and its habit of running low-resolution images through facial recognition software in order to generate leads when conducting investigations. While his post focused on just how those low-res images were used, and sometimes misused, the important thing to recognize for the purposes of this post is that the Vegas police weren’t just using facial recognition technology for its purposes, but were using it widely enough that it wasn’t some limited, targeted use that only came into play when the circumstances involved very high quality images. From that original post:

As is the case everywhere law enforcement uses this tech, low-quality input images are common. Investigating crimes means utilizing security camera footage, which utilizes cameras far less powerful than the multi-megapixel cameras found on everyone’s phones. The Las Vegas Metro Police Department relied on low-quality images for many of its facial recognition searches, documents obtained by Motherboard show.

So, if you were wondering what the Las Vegas police think about the use of facial recognition technology, you have your answer: it’s all aces as far as the police are concerned. That is, it appears, until the cameras are turned around on those same police.

The NFL has rolled out a new credentialling program for its staff at NFL stadiums across the country this year. As part of that new program, the NFL is asking for all kinds of biometrics from anyone that will be working the games, including fingerprints and facial scans for facial recognition purposes, alongside other identifying information such as a home address and phone number.

Despite this technology’s wide use among Vegas police, Las Vegas Police Protective Association president Steve Grammas is telling police officers to refuse to work security at these NFL games.

“They’re going to take your biometric data – your face, and they’re going to use that however they need to,” Grammas says, apparently oblivious to the irony in arguing on behalf of police, who are embracing facial recognition worldwide at an astonishing pace, that collecting biometrics is invasive. Las Vegas Police Captain Dori Koren told MIT Technology Review in 2020 that the force was already using facial recognition.

“They’re going to extend that to their NFL family partners to use your information should they need to. That branches into a lot of places that your biometric data could be exposed to, a lot of people that you may not want it to be.” Grammas says raises fears that biometric data – i.e., a selfie – could fall into the hands of “people who are anti-cop, that support a different agenda from what law and order supports.”

Somehow, I tend to believe that there might be other concerns over how those biometrics are used. You know, perhaps there’s a concern that the data might fall into the wrong hands, specifically hands that might be interested in matching up the faces of police with public appearances by some notorious groups that are out there. Groups that tend to be fascistic, or that might push white supremacy messages, or other political leanings that these same police wouldn’t want to be noted. Perhaps they could be matched up to participants in certain rallies, for instance, or with participants in congressional “tours” such as occurred on January 6th.

But whatever the reason, neither Grammas nor the police department that has said it supports Grammas’ concerns, have bothered to explain why this technology is kosher for use by police against the public but not okay when the camera points at an off-duty police officer.

So I guess that income stream for NFL games will go away for off-duty Vegas police. All because they refuse to live in the same world as the rest of us.

Filed Under: facial recognition, football games, las vegas, las vegas pd, privacy
Companies: nfl

NFL Hit With $4.8 billion Verdict In NFL Sunday Ticket Antitrust Case

from the hello-you've-been-ripped-off-for-decades dept

Wed, Jul 10th 2024 03:15pm - Karl Bode

On any given Sunday there’s simply no shortage of U.S. antitrust violations, where some giant predatory corporation leverages its consolidated power to derail price competition and harm consumers.

But because U.S. antitrust enforcement is a feckless and inconsistent mess, in most instances (see: telecom), a company can engage in these kinds of practices for decades and see no meaningful repercussions whatsoever. And most of the time, the government’s rhetoric on antitrust is largely performative (see: the GOP’s recent successful effort to gain political leverage on tech giants).

When companies are occasionally held accountable via regulators and the courts, the targets can sometimes seem scattershot. Take this latest court ruling against the NFL, for example, in which the league has been ordered to pay $4.7 billion in class action penalties over allegations that it artificially drove up the cost of its NFL Sunday ticket out of market streaming service.

The service, historically locked down under one provider (most recently DirecTV/AT&T), has traditionally been prohibitively expensive in comparison to other league streaming services around the world. One reason for that, the class action lawsuit (pdf) alleged, is that the league violated antitrust laws by providing exclusive access to out of market games to a single company (DirecTV).

The NFL had tried to claim that NFL Sunday Ticket was exempted from antitrust protections governing broadcasting, but the class action successfully argued those exemptions only cover over the air broadcasts, not satellite TV or direct to consumer streaming services.

The class action covered 2.4 million residential subscribers and 48,000 businesses in the United States who paid the package between 2011 and 2020. For a while, users who wanted NFL Sunday ticket had to subscribe not just to the package, but to DirecTV as well, resulting in annoyed consumers and lawsuits a decade ago by bars and other businesses complaining they were being ripped off.

The NFL’s deal with DirecTV ended in 2022 after AT&T, imploding and debt-riddled from its pointless and bungled merger with Time Warner, could no longer afford the high price of exclusivity. Google now owns the exclusive, seven-year rights (at a rumored $2 billion every year) to NFL Sunday Ticket starting with the 2023 season.

Damages can technically be tripled under antitrust laws for this lasting ruling, so the NFL could technically be on the hook for as much as $14.39 billion. The league will most certainly file an appeal with the 9th Circuit Court of Appeals and potentially the corporate-friendly right wing Supreme Court.

If the decision holds (and that’s certainly never certain in a corporate-friendly U.S. legal environment) it could potentially force down the price of NFL game streaming access. NBA League Pass and MLB.TV are significantly lower cost, in part because they’re delivered to consumers across a litany of different services (YouTube, Amazon Prime, league-owned apps). But even those options may be expanded:

“It’s going to require other leagues to take a close look at their model and make sure that the means by which they’re providing consumer choice really does ensure true choice,” said Christine Bartholomew, vice dean and professor in the University of Buffalo’s School of Law. “What happened here, at least according to the jury, was that the NFL had really suppressed consumer choice. Not only did they steer the consumers towards using satellite TV, it meant that they had to buy the whole package.”

Class actions are often viewed as utterly worthless lawyer-enrichment efforts, but occasionally they do nudge things in the right direction absent meaningful competition or regulators with working vertebrae.

Filed Under: antitrust, antitrust reform, class action, football, nfl sunday ticket, streaming, video
Companies: nfl

NFL Inks Deal With Netflix To Stream A Handful Of Xmas Day Games Only

from the not-found-league dept

Are you an NFL fan? If you are, are there particular teams or games you want to watch? The obvious answer to that second question would be “yes”, though the answer to whether you’ll actually be able to watch those games is much less obvious and much more convoluted. It depends which team, and which game, and on which day, and with which device. That’s because the NFL product has become so impossibly fractured across all kinds of broadcast and streaming partners that you have to wade through a labyrinth just to figure out if you’re subscribed to the right product for a particular game.

We talked about this already earlier this year when the NFL put a single game exclusively on Peacock. That brand new experiment didn’t go terribly, but it also didn’t do great. For streaming events, the numbers it drew were huge. So too was it surprising to learn that more people than I would have expected let their brand new Peacock subscriptions remain weeks and weeks after the game. On the other hand, the game didn’t do anything like the numbers NFL games typically do on broadcast television or streaming services that closely resemble them, such as YouTube TV.

Meanwhile, you could currently watch NFL games on cable, if you were in the right geographic area, on YouTube TV, on Amazon for Thursday night games, on Peacock, on ESPN Plus, or on the NFL’s NFL+ (but only if you are okay watching it on a phone or tablet). And now, on Christmas Day for the next several years, you’ll have to be a subscriber to Netflix to watch those games as well.

The first Netflix Christmas games will be this season, on December 25, 2024, (that’s a Wednesday, by the way). Netflix will get two Christmas games this year, Chiefs at Steelers and Ravens at Texans, with exact times to be announced later tonight at the NFL’s live schedule unveiling extravaganza (even the schedule release is an event now). The NFL says 2025 and 2026 will see “at least one” game on the service each Christmas. The exact terms of the deal were not disclosed.

When it comes to televised live events, the NFL is obviously king. If you look at the top 30 televised events for 2023, you will notice that 29 of them are NFL games. So it’s obvious why any streaming partner would want a piece of the game to attract those eyeballs to their platforms.

But at some point the product has to become so fractured to have a negative viewership effect, right? This cannot go on forever. And for all the fanfare around the Peacock exclusive game last year, there was also a lot of anger and frustration from folks that thought it was quite shitty that they had to sign up for yet another streaming service just to watch a single game due to the NFL’s insatiable appetite for cash.

But if the NFL is hoping to eventually unify its streaming rights, it won’t be able to do so until 2029.

Netflix has been dipping its toe into the NFL content stream with special reality-style documentaries like Quarterback and the upcoming Receiver, which star current NFL players, but this will be the first time the streamer will air live football. With NFL Sunday Ticket on YouTube TV and Thursday Night Football games on Amazon Prime, the NFL is moving online more than ever. In a few years, things will get even wilder: In 2029, the NFL can cancel all the TV deals at the same time if it wants. That would lead to an unprecedented bidding war among all the TV and streaming providers and would upend the entire NFL content world.

While true, at some point NFL fans are just going to want to be able to know where they can watch the damned games. Having seven to ten places to have to either subscribe to and/or navigate to find that game is an opportunity cost that will eventually have an effect.

Filed Under: football, streaming
Companies: netflix, nfl

Fractured Streaming Services Don’t Suck Enough To Keep The NFL’s Peacock Experiment From Being A Success

from the live-sports-is-king dept

There can’t really be much doubting the fact that the fracturing of streaming content and the silos that are being built around that content are not a good thing. Examples of what was an ecosystem that mostly consisted of Netflix and Amazon being ruptured into streaming services offered by content producers themselves, such as Disney for instance, has resulted in frustration in the market for some and resorting back to piracy for others.

Still, the world is moving more and more to streaming versus traditional broadcasts. Late to this party has been live sports, though a ton of movement has happened there, as well. But perhaps this specific environment is one where you would think that the NFL experimenting earlier this month by streaming a playoff game exclusively on a more niche streaming service like NBC’s Peacock might be a bad idea. The numbers the game did, however, seem to indicate otherwise, even as there was a ton of negative feedback and confusion from football fans.

The NFL playoffs started this past weekend, and with it came the first streaming-only playoff game. Usually, premium NFL games like the playoffs are on one of the major TV networks nationwide, but the Dolphin/Chiefs wildcard game was exclusively available on Comcast/NBC’s Peacock streaming service outside. NFL fans weren’t particularly happy about having to sign up for some random streaming service to watch a playoff game, but that didn’t stop many people from actually signing up, with Nielsen logging 23 million average streaming viewers for the game.

NBC says that 23 million viewers make the game “the most streamed event ever in US history” and “a milestone moment in media and sports history.” Nationally, the game was exclusively on Peacock, but local TV broadcasts were still available in the Miami and Kansas City metro areas, so 27.6 million people watched the game. The NFL hasn’t announced the ratings for the other playoff games yet, but last year, the wildcard round averaged 28.4 million viewers per game, so this got in range of that. On paper, this was one of the better games of the weekend, featuring the defending Super Bowl champion Kansas City Chiefs and the high-flying Dolphins’ offense, and it was in prime time, so with a traditional broadcast, this was probably due for above-average ratings. Peacock exclusivity reduced the audience somewhat, but it still attained NFL-class numbers.

While the numbers look quite successful, there are so many caveats to all of this that it’s hard to know where to begin. I’ll start with the confusion aspect of this. Many NFL fans that planned to watch this game had no idea ahead of time, despite any marketing or information that was put out, that this game was exclusively streaming on Peacock until they went to watch the game and couldn’t find it. I know; I was one of them. And I imagine a whole bunch of people signed up for the service last minute just to watch the game. I know; I was one of them. And then a whole bunch of those people who were annoyed at a paywalled playoff game in the most popular sport in America likely then went ahead and immediately canceled their subscription. I know; I was…well, you get it.

Then we add to all of this that one-off experiments do not demonstrate a trend. I heard a whole bunch of folks in sports media talking about how the success of all of this might lead the NFL to start making more and more games exclusive to specific streaming services, all in an effort to recapture broadcast contracts that won’t be nearly as lucrative in the future. A sort of pay-per-view situation, except it’s not per-view, but rather an attempt to force the public to sign up for even more niche streaming services all to watch what is essentially a single product. That’s going to piss people off way more than they are now about fractured streaming content. Imagine if you had to sign up for 3 different streaming services to watch a television drama because every third episode was on another service. Nobody would do that.

And the leagues better figure this out, because right now they are what is keeping cable television alive and they are quickly becoming the driving force behind streaming as well.

The NFL is basically the only institution keeping traditional broadcast TV alive. Of the top 100 highest-rated US TV broadcasts in 2023, a staggering 93 of them were NFL games. Lucrative TV contracts will keep most games on broadcast TV for the foreseeable future, but even the NFL is slowly transitioning to streaming. The weekly Thursday Night Football game is now exclusive to Amazon Prime; ESPN+ gets one exclusive game per season, and Peacock has these two games this year. The biggest NFL package, NFL Sunday Ticket, which gives fans about 13 out-of-market games every Sunday, moved from DirecTV to YouTube TV this season. The NFL even has its own streaming platform, NFL+, though it takes a backseat to partner services.

It’s a simple rule of content: you have to make the content product available to the public in roughly the way they want it, make it easy to find and watch, ensure the public knows where to go for the content, and make it reasonably affordable for them to buy and consume it.

Whatever success the Peacock experiment was for the NFL, it certainly doesn’t comport with those rules.

Filed Under: exclusives, football, playoffs, sports streaming, streaming
Companies: nbc universal, nfl

NFL Sends C&D To University Of Houston Over Homage To The Oilers’ Uniforms

from the no-fun-league dept

One of the longest standing jokes in professional sports is labeling the NFL, or National Football League, the No Fun League, instead. This typically has to do either with the way the league has legislated a lot of what fans love about the game off the field in the name of player safety, which isn’t a horrible thing, or the way it also has tried to control exuberant player behavior on the field, which is generally lame. But the NFL is the No Fun League in Techdirt-ian ways as well, as a short review of our posts on the league will demonstrate. The league is one of the most voracious trademark defenders, or bullies, out there. And not just for its insane game of make believe the league plays when it comes to its trademark rights for the Super Bowl, but in general.

Which brings us to the University of Houston football team, which decided to have a little fun and wear uniforms that were an homage, though not an exact replica, or the old Houston Oilers team that eventually became the Tennessee Titans.

The Cougars caught the ire of the NFL’s merchandising and licensing division for wearing light blue uniforms in the season opener vs. UTSA on Sept. 2. UH said the uniforms were a tribute to the city’s football history, but the NFL saw the jerseys as “blatant copying” of the old Houston Oilers uniforms.

As a result, the NFL wants Houston to “discontinue all sales of merchandise and remove any promotional campaign or social media posts that feature the popular light blue, or Columbia blue, with red stripes color scheme and design,” the Houston Chronicle reported.

Now, as the article goes on to note, the Oilers left Houston nearly three decades ago, though the Titans do still wear the old Oilers uniforms as a throwback jersey and still hold trademarks for all kinds of Oilers branding, including the old uniforms. Here’s the thing though: UH isn’t doing much of what the NFL demands it stop doing. It isn’t selling any merch with the homage uniforms. It didn’t refer to the Oilers at all in any promotional or social media messaging, instead opting to refer to Houston’s football history.

Even the demand that the university cease using “similar” uniforms is legally dubious. This is trademark law we’re talking about, after all. The typical primary question is simply whether the public is going to be confused as to any ownership or affiliation of the school with the NFL. That obviously isn’t going to be a thing in this case. UH fans are going to know damned well that the school has nothing to do with the NFL.

Houston did not reference the Oilers when it revealed the uniforms — which are a slightly different shade of blue — in the lead-up to the season opener. Additionally, UH has not sold merchandise as part of the uniform drop.

Still, the NFL considered the uniforms to be an unauthorized use of the Oilers’ branding.

Even if we took the NFL’s view on the matter, there would still be nothing stopping it from working out some sort of cheap arrangement to let UH celebrate the city’s history within the sport of football in order to let this move forward. It didn’t have to play legal bully if it didn’t want to.

But then I guess we’d have to figure out what the “N” would stand for instead of “no.”

Filed Under: homage, houston, houston oilers, trademark
Companies: nfl, university of houston

YouTube TV’s New NFL Sunday Ticket Stream Off To A Rocky Start

from the clogged-tubes dept

Cord-cutting, referred to as some sort of myth for many years, is now an obvious trend. And as I have personally claimed for years now, the last thread that is keeping the cable business in a state that’s anything remotely like its heyday is live sports broadcasts. In the past several years, however, more and more sports are being streamed across more and more services. Perhaps the most prominent of them is YouTube TV, which is as close a proximation of what you get with cable television as I’ve seen. The problem is that, while cable tv has had broadcast flubs with live sports in the past, streaming live sports brings with it new and perilous opportunities for failure. We saw an example of this with the World Cup several years ago, in which a semifinal match suffered from a YouTube TV outage that absolutely enraged fans. More recently, in an NBA playoff game earlier this year, the stream cut out and was replaced by a commercial for the forthcoming The Little Mermaid Disney movie on a loop. For a still young streaming service looking to drive up adoption rates, these experiences are what puts the brakes on YouTube TV gaining more customers who are live sports fans.

And unfortunately, it keeps happening. No, it isn’t some massive widespread thing, but YouTube TV took over the NFL’s Sunday Ticket rights from DirecTV this year, and it certainly isn’t going off flawlessly.

When YouTube TV took over NFL Sunday Ticket, the key was ensuring that the experience was as good as it had been on DirecTV for the previous 29 years. For its initial seven Sundays, that was the case. But YouTube TV fumbled the ball this Sunday.

Users across social media reported suffering lag and long, repetitive buffering sessions with the streams throughout the day. There were nine NFL games playing on NFL Sunday Ticket yesterday. According to The Washington Post, subscribers were having problems “well into the second half of games.”

YouTube acknowledged the problems via its TeamYouTube X account, saying, “If you’re experiencing buffering issues on YouTube our team is aware and working on a fix. YouTube TV or NFL Sunday Ticket may also be impacted. we’ll follow-up here once this has been resolved.” However, the social media account hasn’t provided an update as of this writing.

Ah, the dreaded “buffering.” Issues like this are exactly what the cable companies and their apologists warned the public about to try to keep them from switching to streaming services like this. And while the service by and large performs quite well, again, you have to keep in mind that live sports streaming, where delays and outages are a much bigger deal compared with watching traditional shows, is of paramount importance to peeling the remaining cable subscribers away from those services.

So too is the lack of communication from YouTube’s support channels. When people are unable to watch their team or their favorite sport and go looking for explanations only to be met with relative silence, it becomes real easy for those customers to think, “Oh, I get it, you’re just another Comcast that doesn’t really care about me or the service you provide.” And any time you’re being compared with Comcast, that isn’t a good look.

Hell, even players in the NFL have had shade to throw YouTube’s way due to this.

But that doesn’t provide much comfort to subscribers who look forward to Sunday football all week long. And it didn’t seem to console Buffalo Bills’ DaQuan Jones. As spotted by The Verge, he tweeted Sunday (he wasn’t playing):

“You pay all this money for streaming services… just so they don’t work on the days you actually need them.”

Despite all of this, we’re still in a “when not if” scenario when it comes to streaming services being in the same dominant position cable companies were a decade ago. How quickly we get there, however, depends in part on those streaming services getting it right with live sports. Whether you care about sports or not, it really is that important.

Filed Under: cord cutting, sports, sports streaming, sunday ticket
Companies: nfl, youtube

from the can't-do-the-impossible dept

Back in May of this year, the USPTO put out a request for public comments from interested parties in how to modernize its policies and/or copyright law to combat counterfeiting and online piracy. The world’s easiest prediction would have been that the copyright industries would request more stringent copyright rules and heavier and faster policing of copyright by literally anyone other than those from the copyright industries. That they did so is simply par for the course.

But one of the requests that stood out came from several major professional sports leagues, such as the UFC, the NBA, and NFL. Those leagues complain that the DMCA takedown process both doesn’t work for sites that aren’t hosted in the United States and that the takedown process takes too long when it comes to live sports broadcasts.

The Digital Millennium Copyright Act of 1998 requires websites to “expeditiously” remove infringing material upon being notified of its existence. But pirated livestreams of sports events often aren’t taken down while the events are ongoing, said comments submitted last week by Ultimate Fighting Championship, the National Basketball Association, and National Football League.

The leagues urged the US “to establish that, in the case of live content, the requirement to ‘expeditiously’ remove infringing content means that content must be removed ‘instantaneously or near-instantaneously’ in response to a takedown request.” The leagues claimed the change “would be a relatively modest and non-controversial update to the DMCA that could be included in the broader reforms being considered by Congress or could be addressed separately.” They also want stricter “verification measures before a user is permitted to livestream.”

I’ll leave aside the simple fact that “near instantaneous” is still ambiguous for the moment. What these leagues are asking for simply isn’t realistic. There isn’t a bench of copyright police out there at these ISPs with nothing to do just waiting with an itchy trigger finger to block the next site immediately that David Stern requests they block. Nor should they be, frankly. The existing law provides for takedowns, but the reality is that these leagues either are plenty successful and shouldn’t be worrying much about these streams of events, because those streaming wouldn’t by legit buyers anyway, or this is such a huge problem that it becomes a business model issue, rather than a technology issue.

As for this being a “modest and non-controversial update” to the law to remove the time for review of the requested site-block, well, you need only review the history of site-blocking regimes around the world to realize what a laughable statement that is. That link will take you to gobs of stories about countries that do this kind of regular and fast site-blocking and all of the corruption, censorship, and feature-creeping that has come along for the ride. All while, by the way, collateral damage goes up in those countries and the rates of piracy barely move.

So are these leagues really wanting their public comment to be that the problem with American copyright law is that we aren’t similar enough to the Russian and Chinese regimes? Really?

Fortunately, some tech industry groups are providing rebuttals. The Computer & Communications Industry Association (CCIA) pointed out that blanket speed-run takedown rules put upon ISPs and websites would create for them a massive chilling effect.

Under both existing copyright law and trademark law, there is no obligation on the part of online service providers to proactively monitor or enforce infringements. Rather, this is a matter of discretion and policy for each service, and should remain that way. The imposition of proactive enforcement obligations would be less effective, would inevitably negatively impact free speech and legitimate trade, and would introduce untold unintended consequences—digital services would be disincentivized from innovating and would do only what the law required, benefiting no one.

The CCIA also told the US that “the most effective way to prevent infringement is to ensure that members of the public, most of whom want to pay for content, can lawfully consume works digitally whenever and wherever they want.”

And because this train never fails to be on time, the Premier League’s answer to that is, of course, “make the robots do it.”

The US received comments about Automated Content Recognition (ACR) systems from England’s Premier League. ACR systems can “prevent unauthorized streams being uploaded onto the Internet,” the league said.

YouTube and Facebook already have such systems, the Premier League said. But for platforms without ACR, the Premier League said it wants live takedown tools that rights owners would operate themselves.

Left unsaid in that comment is the notion that these automated systems absolutely suck and cause a ton of false-positives in their takedowns, which is a nicer way of saying that they erroneously and preemptively block perfectly legal speech all the damned time. Stories about automated copyright bots taking down legitimate content are legion. Suggesting their wider use combined with instantaneous censorship is absurd.

If the leagues want to see improvements in our copyright regime, it would be nice if they came to the table with some actually new and nuanced ideas. The above are mere retreads, combined with a request for speed that doesn’t comport with reality. Do better, leagues.

Filed Under: copyright, dmca, dmca 512, instant takedowns, live streaming, sports
Companies: ccia, nba, nfl, ufc

NFL Returns To Threatening Local New Orleans Businesses Over Fleur De Lis

from the no-fun-league dept

More than a decade ago, it came to our attention that the NFL was out in the streets of New Orleans threatening small businesses for the crime of using New Orleans related language alongside the use of images of the fleur de lis. Those actions were quite silly, given that the symbol and much of the language in question is part of the broader and general culture surrounding New Orleans, but that didn’t keep the NFL from trying to appropriate all of that culture for its own purposes, no matter whether the “offending” uses did anything to actually confuse the public into thinking the NFL or Saints were somehow involved.

And then things got quiet for a decade. Recently, however, it seems that the NFL and its lawyers have decided to get back up to their old tricks. A small apparel company, DNO, and its chief brand of “Defend New Orleans,” have come under threat from the league via cease and desist notices.

Nola.com’s Stephanie Riegel reports that the NFL has issued a cease-and-desist order to the New Orleans-based apparel brand DNO, claiming that its long-running “Defend New Orleans” logo infringes on a trademark owned by the league. Popular with New Orleans Saints fans, the logo features a spiked skull wearing a fleur-de-lis, often portrayed in black and gold. DNO founder Jac Currie began selling apparel with the signature logo in 2003.

As the source post notes, the NFL’s last attempt at this kind of bullying ended in it withdrawing its threats after local New Orleans elected officials got involved and put a stop to it. As was the case a decade ago, the apparel in question really does not cause the mind to associate the images with the team, even if Saints fans enjoy wearing the gear. Instead, portrayed is a skull, often times with spikes on its top, and with a fleur de lis emblazoned on its side. Does it look a bit like a football helmet with a logo on it? Sure, maybe, but that’s not what it actually is. See an example below for yourself and decide whether this looks like anything resembling the New Orleans Saints branding or imagery.

For context, that is the closest example I could find to looking like anything the NFL could be concerned about. The rest of the catalogue is even less offending in terms of any similarity to the team’s iconography. Fortunately, DNO appears to be prepared to defend itself.

Currie’s attorney Scott Sternberg argues, as Caldwell did in 2010, that the NFL has no claim to the logo given its historical significance to the city. He wrote: “The fleur-de-lis has been synonymous with New Orleans since its founding in 1718. It has been featured on the city’s official flag since 1918. The area was named for Phillippe II the Duke of Orleans, whose family coat of arms used the fleur-de-lis.”

The NFL is an infamous trademark bully, so I can’t say this is entirely surprising. That being said, hopefully it won’t take local officials getting involved yet again to make this all go away.

Filed Under: fleur de lis, new orleans, new orleans saints, trademark
Companies: nfl

NFL Loses Lawsuit Over Phoenix Super Bowl ‘Clean Zone’

from the end-zone dept

It’s nearly time for the Super Bowl, the NFL’s orgy of advertising with a bit of football mixed in to keep things interesting. And, as per usual, the NFL has been running around pretending that it has intellectual property rights that it doesn’t have. This year, while not an entirely unique thing, the NFL has also found a willing partner in the city of Phoenix when it comes to enforcing these overbearing non-rights. Back in December, for instance, we wrote about a lawsuit brought by one property owner against the city over its “Clean Zone” ordinance. That ordinance required any citizen of the city who wanted to post any new temporary signage in the city to get approval from the government and/or the NFL first.

You already know where this is going. The propery owner in question, one Bramley Paulin, sued on First Amendment grounds with the help of The Goldwater Institute. As we wrote at the time, there appeared to be little reason to think the ordinance would survive any real 1A challenge. And, as a matter of fact, that is exactly what happened. In early February, the court issued its ruling, noting that the ordinance violated Paulin’s First Amendment rights and, with respect to him at least, the city was required to consider his application without the new requirements in the new ordinance.

A Maricopa County judge has ruled that Phoenix’s signage restrictions leading up to the Super Bowl were “unconstitutional” and ordered the city to allow a property owner the chance to put up signs.

Maricopa County Judge Bradley Astrowsky determined that the city’s “clean zone” resolution was an “unconstitutional delegation of government power,” the Thursday ruling said.

“The Resolution provides no standards to guide decision-maker’s discretion. It was also unconstitutional of the City to delegate this power to an unaccountable private actor,” the ruling states.

So what did Paulin want to do that the NFL would object to? He wants to use his property to allow companies to advertise on or near it temporarily during and in the lead up to the Super Bowl.

“I wanted to lease out my property,” Paulin said. “You could imagine of all the companies that are out there who would love the opportunity to sell their products to market their name.”

One of the companies Paulin communicated with was Coca-Cola, which was not willing to strike a deal with Paulin due to the “clean zone.” A Coke ad would have more than likely been immediately struck down due to the Super Bowl’s longstanding partnership with Pepsi.

Except the rights the NFL has to the Super Bowl don’t remotely allow it to simply refuse any non-partner advertisers within a geographic area. That’s absurd. If Coke wants to put up advertising that doesn’t in any way reference the Super Bowl, but merely is displayed to coincide with the timing of the Super Bowl, there isn’t an intellectual property law that exists in American law that allows the NFL to prevent that. Other than, that is, the Phoenix Clean Zone ordinance, which was deemed unconstitutional. The city’s attempt to hurriedly amend the law to remove the NFL’s involvement in administering it after the lawsuit was filed also did not impress the judge.

In summary, the judge found that Phoenix enacted an unconstitutional resolution and then “exacerbated the problem” by choosing to fix the problem when it was already too late for the plaintiff to exercise his speech rights.

“This is the first decision we’ve seen in the country where we’re a court has been emphatic that you can’t have Super Bowl, Super Bowl subcommittees, making decisions about what can and can’t be said during the Super Bowl,” said Jon Riches, vice president for litigation with the Goldwater Institute.

And there you have it. Finally, some flaws in the governmental armor the NFL has long built around itself to allow it to be an IP bully.

Perhaps this will lead to companies and the public probing at the other overbearing instances of IP enforcement the NFL engages in. As we’ve long said, you can say “Super Bowl” all you want, so long as you’re not confusing the public into believing there is some sponsorship or association with the NFL.

Filed Under: 1st amendment, bramley paulin, clean zone, maricopa county, phoenix, signage restriction, super bowl, trademark
Companies: nfl