If this were an actual paper, I would argue that either the television ratings system needs to be reformed, or that the NFL and its fans need each make some concessions and meet somewhere in the middle; not unlike a union bargaining with management. The NFL cannot survive without its fans, and many fans (including myself) cannot live without the NFL. I would hesitate to take a side without doing further research, but I feel it is safe to say that our current "agreement" between the league and its fans is just not good enough.

 I have 11 sources...one of which is the blog you said was not an appropriate source. I wrote it before I got your email so I left it intact just for fun...feel free to disregard it.

 Thanks for all your help this semester Peter...I really enjoyed your class. Have a great rest of the summer.

 Jim

Fenwick, Michael M., "Football's Intellectual Side: The NFL versus Super Bowl parties and the story of the fifty five inch television", John Marshall Law School Review of Intellectual Property Law, Fall 2004

The National Football League (NFL) took action against Las Vega proprietors prior to the 2004 Super Bowl to prevent unauthorized public performances. These establishments intended to have Super Bowl parties (some inviting several thousand people) to watch the game on projector screens with diagonal measurements of up to 20 feet. The basis for the NFL's actions was the Fairness in Music Licensing Act of 1998 (FMLA), specifically with regards to an exemption known as the Homestyle Act. The FMLA limits audiovisual presentations of copyrighted material to screens with a diagonal length no greater than 55 inches.

Fenwick objects to the NFL's condemnation of Super Bowl parties because the FMLA was not meant for broadcast television, furthermore, if not for a flawed television ratings system (Nielsen ratings) this would not even be an issue. Consumers now are being punished for developing a popular trend and proprietors are given the burden of determining what equipment is common enough that it adheres to the Homestyle Act. Fenwick also believes that when a party broadcasts something, there is an implied public license and that the definitions of "perform", "public performance" and "audience" should be redefined; thus revoking the FMLA and the Homestyle Act. He concludes that "statutory language that defines infringement based on consumer trends" should be eliminated to be consistent with the Constitution.

The key statement is that the allegedly flawed Nielsen system is the root of this entire conflict. The NFL is upset that large Super Bowl parties in front of single screens artificially lower the Nielsen ratings, and thus lowers the price that advertisers are willing to pay. The NFL is a business, and they should not be denounced for doing what any profit minded capitalist firm would do; fight for their fair share of the pie. If 50% of American homes are tuning into the Super Bowl, but the Nielsen ratings only reflect 44%, advertisers are paying at a rate below the real market value, thus denying the NFL revenue they are entitled to. It is easy to blame the NFL for taking advantage of a vague, loosely constructed law, but an inadequate television ratings system has forced them to take such actions. In order to ensure a fair return of profits and enjoyability to the NFL and consumers respectively, the Nielsen system needs to be restructured in order to reflect the true number of viewers, and the law must be restructured to strike a fair balance between performers and audience as Fenwick says.

This article gives the NFL a chance to explain their actions against the Las Vegas casinos. League spokesman Brian McCarthy said, "What's happening is that these establishments are charging admission for something we provide for free. The viewers (at these events) are not captured in ratings. That, in turn, hurts our advertisers. Advertisers sustain the networks that pay the NFL its rights fees" McCarthy also added that the NFL evaluates the legalities of such parties based on the locale, size of the screens, and whether an admission fee was charged. The NFL  does not just target Las Vegas; they also sent cease and desist letters to venues in New England and North Carolina (areas whose teams were in the Super Bowl) and also Houston where the Super Bowl was played in 2004. As a result, several places made adjustments to comply with the NFL's request, while some were forced to completely cancel their parties. The Orleans and The Palms were among those that had to cancel, and sustained a financial loss as a result. The Palms were set to not only show the Super Bowl on a movie theatre screen, but they were also charging admission. The general manager, Jim Hughes said they will take quite a financial hit after refunding 1000 $40 admissions and paying for 120 50 inch plasma televisions.

The most interesting part of this article is where it says:

The NFL's complaints about the hotel-casinos' Super Bowl parties does not apply to their normal sports book operations, since companies that operate the books purchase special packages allowing them to air football games for the convenience of their customers.

In other words, the NFL does not have an issue with regular season games, just with the Super Bowl. The Super Bowl is unique because it is the only game on, it is a championship game featuring the NFL's two best teams, and it attracts a wide variety of fans; even some who do not even like football but like the new (and often comical) commercials. The NFL certainly seems to like having exemptions made when it is convenient for them, but then again, they do provide us with free entertainment for several months. Would it really be asking too much for society to give back just a little and abide by the NFL's wishes during the Super Bowl? If I felt confident that the NFL would not further push the envelope, I would say ok, but I am not that confident. Personally I think one of two things should happen: either the NFL should license these establishments for a price, or a method should be developed to count the number of people at Super Bowl parties. The latter seems no more complex that filling out a diary of a days worth of radio listening.

Twentieth Century Music Corporation v Aiken provides an excellent background for the interpretation of a public performance. This case was decided in 1975 so it was before the 1976 Copyright Act modified the definition of a public performance. George Aiken owned a fast food business and had the radio playing through four loudspeakers in the restaurant for the customers' benefit. An ASCAP representative heard Twentieth Century Music's "The More I See You" and they filed suit. The radio station was licensed to air that song, but the lawsuit alleged because Aiken was not licensed, he could not allow this public performance in his restaurant. The Supreme Court however, viewed the radio has being a performer and that the customers in Aiken's restaurant were members of an audience that were intended listeners of the songs. Neither Aiken nor any customers were actually performing the work in the restaurant they were "passive listeners" (Fenwick: 2004). Justice Stewart, in giving the opinion of the Court thus affirmed the decision of the Court of Appeals stating:

'The petitioners have not demonstrated that they cannot receive from a broadcaster adequate royalties based upon the total size of the broadcaster's audience. On the contrary, the respondent points out that generally copyright holders can and do receive royalties in proportion to advertising revenues of licensed broadcasters, and a broadcaster's advertising revenues reflect the total number of its listeners, including those who listen to the broadcasts in public business establishments."

The key line is "broadcaster's advertising revenues reflect the total number of listeners, including those who listen to the broadcasts in public business establishments". One again it is important to separate the NFL from another group, in this case, radio. Radio ratings are based on surveys conducted by Arbitron that recruits listeners to record what they listen to in a diary. The Nielsen ratings of course are boxes that monitor what channel a television is on. Neither one in 2006 can be held to be completely accurate, especially with the rise of new forms of media such as online radio.$2.2 billion for the NFL may be a "fair return" according to Fenwick, but it likely is not the correct return; erring on the low side.

Several drinking establishments intercepted St Louis Cardinal football games within the "blacked out" area. U.S Code Title 15, Chapter 32 outlines the telecasting of professional sports contests; Section 1291 prohibits the broadcasting of a game in the home territory (within 75 miles of the home stadium)if the game is not sold out 72 hours prior to kickoff. This section was created to encourage fans to buy tickets instead of just enjoying a free broadcast at home.

The businesses in question used satellites to receive games in the St Louis area which clearly Section 1291. The NFL sued and won against most of the alleged infringers on the basis of the Homestyle Act. The satellites were deemed not to be commonly found in private homes and the bars were prohibited from continuing this practice. Oddly enough, one bar was not found liable because he had closed the bar and just invited a handful of friends to watch the game; this was ruled a "reasonable circle of social acquaintances".

As stated above, Section 1291 is in place to ensure fans attend home games. When a bar steals the signal of a blacked out game and broadcasts it to attract customers (and thus increase business), they are denying the copyright holders, the NFL, their entitled compensation. The actions of these proprietors rob the NFL of ticket revenue, so Section 1291 was created. The FMLA prevents gatherings at bars large enough to lower the Nielsen ratings and deprive the NFL of advertising revenue. It is reasonable that fans of the Eagles should go to Eagles games; they can not all be free riders. However, fans of all teams watch the Super Bowl and it is a trend that they watch it in large gatherings; it is unreasonable to maintain a policy that supports a flawed ratings system while denying consumers their right to be social.

This statement would eventually help expand the homestyle exemption from the 1976 Copyright Act. Prior to the FMLA, businesses were limited to a "single receiving apparatus of a kind commonly used in private homes". This allows commercial establishments to create a more enjoyable atmosphere, within reason of course. Proprietors would be found liable if they used equipment that was more likely to be found in a movie theatre, stadium, or other commercial establishment. In addition to the expansion of number of audiovisual devices, cable and satellite transmissions would now be exempt from infringement. This is significant because it would have exonerated the establishments in NFL v McBee & Bruno's et al; everything except for intercepting the signal of a Cardinals game in the "blacked out" area.

Many sports bars now appeal to a variety of football fans because they will purchase satellite television packages such as NFL Sunday Ticket. Some bars will have a TV for every NFL game; allowing even a Detroit Lions fan to enjoy a game in Philadelphia. There is still however, a limit on the size of the screen. Sports are different than anything else on the airwaves; it is no coincidence sales of big screen and high definition televisions spike just prior to the Super Bowl. Therefore it is difficult to lump in sports with music, and the law should reflect these differences. The Sports Broadcasting Act of 1961 recognized professional sports has having a unique business structure and exempted them from one of the most important acts in American history: the Sherman Act. If sports can be exempted from the Sherman Act, there should be a law that exempts them from the FMLA.

In the FMLA of 1998, there is a provision that specifically addresses food service and drinking establishments, the latter (sports bars primarily) which typically attract large crowds on autumn Sundays. The following are restrictions placed on these establishments: there may be no more 4 audiovisual devices in the establishment, no more than 1 per room, no screens larger than 55 inches diagonally, no more than 6 loudspeakers, and no more than 4 loudspeakers in a single room. In addition to restrictions on equipment, there can be no direct charge to view the performance (cover charge for example), the performance will not further be transmitted, and the performance is licensed by the copyright owner.

This is a sound strategy by the music industry, but really should not apply to sports broadcasts; professional sports have a vastly different business model than the music industry. The most obvious flaw though is that concerts are rarely televised, and almost never on a channel that is a part of basic cable (more often on pay per view type channels). If a bar televised a concert, a number of customers would essentially view a free concert and deny the musicians revenue on tickets for the concert and/or DVD's or CD's of that may derive from it. The limit on the number and size of TV's and the number of loudspeakers in the establishment or any single room limit people from absorbing the full value of a performance. The issue in Las Vegas with the Super Bowl allowed thousands to view the Super Bowl in a comfortable movie theatre like setting and get the full value of watching the game.

 Including the preseason and postseason, there are 24 weeks of NFL football, 16 of which typically have 14 games being played on Sunday or Monday night football. With the exception of Monday Night Football (which will now air on ESPN), all games are on basic cable stations (Fox and CBS) that can be accessed by anyone. Music performances are far more exotic, and the FMLA reflects that, but this is not applicable to broadcast television. Aside from the Nielsen ratings, consumers are not depriving the NFL of any income.

This is a class action suit brought against the NFL for violating the Sherman Anti-Trust Act. The Sports Broadcasting Act of 1961 (SBA) exempted professional sports leagues from the Sherman Act and allowed them to collectively sell their broadcasting rights. The NFL agreed to sell broadcasting rights to DirectTV so they could sell NFL Sunday Ticket packages to the public. This package is considered "all or nothing" for you either purchase the ability to view all games, or you are limited to only the 2 games in your region. Shaw argues that this limits options for the public while creating artificially high and non-competitive prices. The Court of Appeals affirmed the District Court's decision that the NFL's actions did not fall within the bounds of the SBA. The NFL already received an exemption to the Sherman Act and that exemption must be narrowly construed according to the Court; after already being granted an exemption it would be wrong for the NFL to be allowed so much latitude.

After reading the Fenwick article, I had sympathy for the NFL, actually believing they were being deprived of their due "piece of the pie". However, I find it improbable that the NFL believed that their contract with DirectTV was fair to the consumer population. If Direct TV is the only provider and offers only one option, they essentially hold a monopoly on the market. If a compromise is to be made between the NFL and their fans, each group needs to be conscious of each other's well being. The consumer can not be held responsible for a ratings system that does not properly reflect viewership; the NFL should, and was held responsible for taking advantage of their fans. Is the NFL acting as a typical capitalist profit seeking firm? To a point yes, but Shaw reveals some greed on their part. The Nielsen ratings already limit consumers' options on the Super Bowl, now the NFL Sunday Ticket limits their options every Sunday. The latter action leads to me to stop giving the NFL the benefit of the doubt.

This is an interesting article from the New York Times that discusses a new measure of television and radio ratings. In 2005, Arbitron began giving their volunteers what are called "portable people meters". This device transmits data back to Arbitron what and how much programming people were exposed to in a day. This is called a "passive measurement" that circumvents human error in remembering everything they have watched or listened to.

As the writer, Jon Gertner points out, changing the way you count the ratings can drastically change their composition. Advertising dollars will go in different directions and some shows may be canceled or renewed based on a new count. Changing the count will reallocate millions of dollars and potentially change the business model of radio and/or television in order to adapt. Gertner even goes so far to suggest that changing the way we count changes cultural consumption, cultural business, and perhaps even our culture itself.

Gertner may be right, but he does not declare a side, and for that matter, I do not want to either. Changing the way we count ratings may give us a more accurate ratings system and give the NFL an accurate return on the broadcast of the Super Bowl or any other game. When you undertake an intervention though, you sometimes cause more problems than you solve. Even though I would prefer a more accurate ratings system, is it practical and can our culture absorb such a change? Some things are better left untouched, even if it is wrong. A sudden change in counting I believe would be a bad idea, but a slow gradual one might be a reasonable solution.

In a somewhat tangential, but related topic, John Facenda Jr has sued the NFL, NFL Films Inc and NFL Properties LLC for using his father's voice without permission. John Facenda Sr earned the nickname, "Voice of God", for his narration of numerous highlight films for NFL Films. The NFL is allowed to use Facenda Sr's voice provided it does not endorse product, but it was allegedly used to promote the video game, Madden 2006. The NFL Network broadcast a show called "The Making of Madden 2006" and used Facenda's voice during a portion of it. Facenda Jr's lawyer alleges that the show was essentially a commercial for Madden 2006 and was used without permission. This is not the first Facenda Jr has filed suit with regards to his father; he previously settled a lawsuit with Campbell's Soup for using a sound-alike voice in their ads.

In all likliehood, the provision of that Facenda Sr's voice not be used in a promotional manner is partially to protect "the integrity of his father's voice" but also ensure Facenda Jr receives compensation if he agreed to license the use. If the NFL did use Facenda Sr's voice in a promotional manner without permission, they are making money off his voice without giving money to a copyright holder.

It is my opinion that "The Making of Madden 2006" was shown to promote the game and that the use of Facenda Sr's voice was used in a promotional manner without permission. I acknowledge that this infringement may be unintentional, but not unlike many unintentional, unknowing infringements that occur on a routine basis everyday. The NFL wants proper compensation from the consumers, while trying to further their monetary gain without giving contributors their proper compensation. If Facenda Jr refuses to license the voice even with compensation, the NFL would be upset; no different than how the Las Vegas establishments felt when denied the opportunity to pay a licensing fee for broadcasting the Super Bowl.

I feel it is important to discuss the differences between the NFL and the National Collegiate Athletic Association (NCAA). The NFL as an organization fights to protect their television rights, but the NCAA does not. In the early 1980's, the NCAA did attempt to gain an exemption from the Sherman Act and pool their rights in a similar manner to the NFL. The Supreme Court ruled that this constituted horizontal price fixing and restricted output (similar to the ruling in Shaw v Dallas Cowboys). The NCAA is supposed to preserve a tradition of amateurism, and the best way to maintain that is to maximize the number of games televised. Furthermore, Justice Stevens also stated that there is no evidence the television plan would increase equality amongst institutions. While the NFL has a salary cap that places a ceiling on how much money teams can spend on players, there is no regulation of spending on football programs in the NCAA. While football gives colleges a great deal of visibility, the football program is only component of a university. Some schools value television exposure more than others, and as Justice Stevens points out, restricting revenue earned from television is no different than restricting alumni donations or other sources of revenue for universities.

 In arguing that professional sports should not fall under the jurisdiction of the FMLA (at least not without some exemptions made), I have said that the NFL has a vastly different business model than the music industry. The NCAA has a vastly different model from the NFL and does not function in the same way. The NFL is just a group of football teams; the NCAA is a group of colleges and universities that have sports teams, but many other purposes as well. Without this case, it would be easy to attack the NFL for trying to protect their rights because the NCAA does not. The reason of course is because they simply cannot.

Bill Adkinson who wrote this blog, basically takes the stance that he doesn't like what the NFL did, but he understands why. The Super Bowl is not a pay per view broadcast, and it is free for the public because it is being paid for by advertisers. However, without advertisers, there is no broadcast, and what attracts advertisers is large numbers of their key demographics tuning in to the show they are advertising for. When fewer people are watching a show (whether because there truly are fewer people watching or the ratings are inaccurate) advertisers aren't willing to pay as much. Adkinson's comment is "Oh of course. Show me the money!"

 Adkinson quickly changes his tone though as he acknowledges the economics behind the NFL's logic. They are limited by the fact that they are dependent on advertisers to keep their games on the air waves. The multi-million dollar contracts signed every year by players have to be financed by something; the majority of which comes from advertising dollars. Thus there is a great deal of pressure on the NFL to get "eyeballs on the screen" as Adkinson says. The measurement of these "eyeballs" comes in the form of Nielsen ratings generated by boxes in people's homes that track what programs are being watched. How these ratings are measured are not determined by the NFL, they are at the mercy of the system.

 What is the solution? Adkinson's recommendation is that content providers provide the opportunity to enjoy excellent content in a convenient format so that they get what they pay for. If the content providers would assured of getting what they pay for, this would be a reasonable solution. With the average Super Bowl party hosting 17 people in 2001(http://advertising.about.com/od/superbowlcoverage/a/xxxvfunfacts.htm) it is apparent that Nielsen ratings are not the ideal measure of viewership. If consumers good enjoy a good football game in a sports bar drinking beer with their buddies watching on a big screen AND the Nielsen ratings reflected that 3000 people were watching, everyone would get what they pay for.

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