Are churches "public venues" for NFL purposes?

Sat Feb 3 11:58:33 PST 2007

There are several policy and politics issues arising in this exception:

1)  The reason that businesses have better rights than non-profits is simply because they had better lobbyists during the copyright revision process.

2)  These are exceptions to copyright in large part driven by music copyrightholders.  Since composers and writers and their publishers make substantial income from licensing public performances (even to non-profits) they want to limit the exceptions to their copyright.  In this case, television is simply following the same model in large part because music rights holders are afraid that lessening the protection for TV would ultimately lessen their performance rights.  (Note the common ownership of each by media conglomerates.)

3)  I am not sure why you find it surprising that television owners would want to protect the measurability of their viewership.  They sell advertising based upon projected viewership -- and if they do not achieve their numbers (even through mismeasurement) they have to refund the payments.

4)  Finally, I would point out that this provision covers not only broadcast, but cable television--where the cable owners income would be impacted by a broader exemption.

Since copyright and free speech are both constitutionally protected rights, I do not subscribe to the position that the first amendment should take precedent.

David

David E. Guinn JD, PhD

Recent Publications Available from SSRN at 
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199608

  ----- Original Message ----- 
  From: Marty Lederman 
  To: Law & Religion issues for Law Academics 
  Cc: jack.balkin ; William Patry 
  Sent: Saturday, February 03, 2007 1:37 PM
  Subject: Re: Are churches "public venues" for NFL purposes?

  The basic prohibition stems from 17 USC 106(5), which gives the copyright owner the "exclusive right" to "publicly display" an audiovisual work.  The restriction here presumably is triggered if the church's "display" is "public" (on which see more below).  There is an exemption in section 110(5)(B) for a
    communication by an establishment of a transmission or retransmission embodying a performance or display of a nondramatic musical work intended to be received by the general public, originated by a radio or television broadcast station licensed as such by the Federal Communications Commission, or, if an audiovisual transmission, by a cable system or satellite carrier, if--
    (i) in the case of an establishment other than a food service or drinking establishment, either the establishment in which the communication occurs has less than 2,000 gross square feet of space (excluding space used for customer parking and for no other purpose), or the establishment in which the communication occurs has 2,000 or more gross square feet of space (excluding space used for customer parking and for no other purpose) and--
    (I) if the performance is by audio means only, the performance is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; or
    (II) if the performance or display is by audiovisual means, any visual portion of the performance or display is communicated by means of a total of not more than 4 audiovisual devices, of which not more than 1 audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches, and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space.

  I don't think a church qualifies as an "establishment" under the Copyright Act, which is defined (section 101) as "a store, shop, or any similar place of business open to the general public for the primary purpose of selling goods or services in which the majority of the gross square feet of space that is nonresidential is used for that purpose, and in which nondramatic musical works are performed publicly."

  Thus, even if its television were under 55 inches, the church presumably would not qualify for the exemption.  On the other hand, if it's display were not "public," then it would not appear to be restricted in the first instance.  If invitees were limited to church members, would that be a public display?  Well, the statute provides that "to perform or display a work 'publicly'" means--
    (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times."
  A couple of things about this regime don't seem quite right to me from a Free Speech Clause perspective, although without thinking about it further, I'd be hard-pressed to explain exactly what the problems are from a doctrinal perspective.  In particular, is it problematic that places of business have greater rights to display tv shows than do, e.g., nonprofit organizations (and that bars and restaurants have the greatest rights of all)?  Moreover, this isn't a case in which a for-pay broadcast is being displayed for free, or even a case (as with VCRs) in which the viewers can avoid the advertising.  So what interest do copyright owners have in restricting as many folks as possible from seeing their programs (with advertisements)?  As the article suggests, the reason for this restriction and its exemptions is that copyright owners wish to prevent people from combining together in large groups to watch television programs, because that practice depresses ratings.  Can it really be the case that copyright law restricts us from gathering together to watch free tv in order that our viewing habits can be better measured?  And if so, isn't that a bit odd -- whether or not it's constitutional?

  I hope no one minds that I'm copying copyright maven Bill Patry on this -- he might be able to shed further light -- as well as Jack Balkin, who's done quite a bit of thinking about the intersection of copyright and the First Amendment.

  ----- Original Message ----- 
    From: Ed Darrell 
    To: Religionlaw at lists.ucla.edu 
    Sent: Saturday, February 03, 2007 1:50 PM
    Subject: Are churches "public venues" for NFL purposes?

    I was interested to see a story in the Los Angeles Times today saying churches were frantically cancelling their planned Super Bowl parties because the NFL claims they are illegal.  The NFL claims it is illegal to put the football game on any television screen larger than a "living-room-size," or less than 55 inches.  Story here:  http://www.latimes.com/sports/football/nfl/la-na-super3feb03,1,1708801.story?coll=la-headlines-sports-nfl

    I would have thought that churches are not public venues, but are instead private associations?  

    I'm not sure that I'd want to defend a right for a church congregation to watch an NFL game, but I wonder if the NFL hasn't overreached here, just a bit.

    Your opinions?

    Ed Darrell
    Dallas

    Louisville Courier-Journal:  http://www.courier-journal.com/apps/pbcs.dll/article?AID=/20070201/SPORTS/70201053
    Indianapolis Star:  http://www.indystar.com/apps/pbcs.dll/article?AID=/20070201/SPORTS03/70201036

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