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.

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.

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.

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 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.