Are churches "public venues" for NFL purposes?

Sat Feb 3 12:03:35 PST 2007

  I share Marty's intuition that there are free speech problems
here.  There are also free exercise problems, if churches are
forbidden to do things that are perfectly legal for bars,
restaurants, and other for-profit establishments.

  Quoting Marty Lederman <marty.lederman at comcast.net>:

> 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[1]
>
>   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[2]
>   Indianapolis Star: 
http://www.indystar.com/apps/pbcs.dll/article?AID=/20070201/SPORTS03/70201036[3]
>
>
>
>
>
>
------------------------------------------------------------------------------
>
>
>   _______________________________________________
>   To post, send message to Religionlaw at lists.ucla.edu
>   To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw[4]
>
>   Please note that messages sent to this large list cannot be viewed

> as private.  Anyone can subscribe to the list and read messages
that
> are posted; people can read the Web archives; and list members can 
> (rightly or wrongly) forward the messages to others.

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

Links:
------
[1] 
https://web.mail.umich.edu/horde/services/go.php?url=http%3A%2F%2Fwww.latimes.com%2Fsports%2Ffootball%2Fnfl%2Fla-na-super3feb03%2C1%2C1708801.story%3Fcoll%3Dla-headlines-sports-nfl
[2] 
https://web.mail.umich.edu/horde/services/go.php?url=http%3A%2F%2Fwww.courier-journal.com%2Fapps%2Fpbcs.dll%2Farticle%3FAID%3D%2F20070201%2FSPORTS%2F70201053
[3] 
https://web.mail.umich.edu/horde/services/go.php?url=http%3A%2F%2Fwww.indystar.com%2Fapps%2Fpbcs.dll%2Farticle%3FAID%3D%2F20070201%2FSPORTS03%2F70201036
[4] 
https://web.mail.umich.edu/horde/services/go.php?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/religionlaw/attachments/20070203/450e4b98/attachment.html