
The NFL wants you to think these things are illegal - suprgeek
http://arstechnica.com/tech-policy/2015/01/the-nfl-wants-you-to-think-these-things-are-illegal/
======
rayiner
The first point is wrong. Retailers don't avoid saying "Super Bowl" because
they think it's illegal to say the phrase, but because an advertisement is an
offer to sell goods, and mentioning someone else's trademark in that context
always creates some possibility of confusing people into thinking that the
trademark-holder is the source of, or is authorizing or endorsing, the
products being advertised. Creating that confusion about the origin of the
product _is_ a trademark violation.

~~~
pbhjpbhj
> _and mentioning someone else 's trademark in that context always creates
> some possibility of confusing people_ //

It's not 'possibility' it's 'likelihood' of confusion that is considered,
amongst other factors - eg [http://www3.ce9.uscourts.gov/jury-
instructions/node/244](http://www3.ce9.uscourts.gov/jury-
instructions/node/244).

The NFL own the RTM (eg serial number 78688906, 77182909, 76572704) and they
use it to sell merchandise, TV broadcasts, and clothing respectively. The
problem they face is that bowl is a generic term for a [sports] competition
(cf [http://www.merriam-webster.com/dictionary/bowl](http://www.merriam-
webster.com/dictionary/bowl)), and super is also standard language. You can't
use trademarks to prevent a person describing something. Moreover when I say
"buy my beer to drink whilst you watch the Super Bowl" I'm not using the
trademark, I'm using a description of a sports event. If I said "buy my beer
to drink whilst you wear your Super Bowl t-shirt" [assuming the owners have
registered the mark for clothing] then I'm using the trademark, but I'm still
using it to describe the TM owners goods, quite clearly, and so there's no
confusion.

Clearly one could create confusion: "drink our Super Bowl beer" uses the term
as if it were a trademark, and moreover as if it were the advertisers
trademark.

Isn't "super bowl" just a description of a large sports event ; that would
seems to lack the distinctiveness normally required of a trademark for
anything that's normally related to sports events. The 2 live marks
incorporating "super bowl" would make it _appear_ the the USPTO consider use
of the term separate to the NFL's mark as allowable [but I'm not sure they've
been properly examined as yet].

~~~
rtpg
> Moreover when I say "buy my beer to drink whilst you watch the Super Bowl"
> I'm not using the trademark, I'm using a description of a sports event

I think you would also have a difficult time convincing a judge you were not
talking about the NFL championship. Application of the law is rarely a "check
the dictionary, guys, he's technically correct" thing. Especially when it
comes to things like trademark violations (where it's about confusion to the
general public)

~~~
pbhjpbhj
> _convincing a judge you were not talking about the NFL championship_ //

You don't need to. Trademark law doesn't prevent you from referring to
people's products, nor their origin, it prevents you from selling your own
products as if they were someone else's. The judge doesn't care [shouldn't!]
that you're referring to the NFL Super Bowl TM - their concern is whether
you're suggesting your product comes from the company that own the Super Bowl
trademark (for a limited set of products).

Not even an imbecile would think that "buy X to use whilst you do Y" means
that the people selling X own Y. "Buy our gloves for your skiing trip to
France" \- oh clearly that company owns France /s.

It's not about confusion of the general public, it's removed from that. Even
if you can show that there is no actual confusion (surveys or whatnot) the
judge can still decide there is a likelihood of it (and _vice versa_ ).

------
gnoway
This article links to an older Ars article, which links to Wendy Seltzer's
blog, which appears to be offline.

Here's the referenced blog post:

[https://web.archive.org/web/20140331144544/http://wendy.selt...](https://web.archive.org/web/20140331144544/http://wendy.seltzer.org/blog/archives/2007/03/18/nfl_clip_down_again.html).

And here's an archive of the entire series of events:

[https://web.archive.org/web/20140708110042/http://wendy.selt...](https://web.archive.org/web/20140708110042/http://wendy.seltzer.org/blog/dmca-
nfl)

~~~
dhekir
I tried clicking on the Youtube link inside the Internet Archive to see the
clip, but all I get is a message "Sorry for the interruption. We have been
receiving a large volume of requests from your network. To continue with your
YouTube experience, please enter the verification code below." and an archived
sequence of re-captchas that take me nowhere.

Is there a way to actually see the clip?

~~~
personlurking
I copied the link location then removed the unneeded part
[https://www.youtube.com/watch?v=a4uC2H10uIo](https://www.youtube.com/watch?v=a4uC2H10uIo)

------
sologoub
We need more posts like this and some education to the public. Until people
are educated about their rights, crap like the NFL disclaimer will pass for
facts.

~~~
Shivetya
the public? Hell how about educating google/youtube who do take downs against
videos that don't even infringe. I can imagine the fun they will have Monday
with people uploading content

~~~
geofft
Google is legally obligated to do so by the DMCA's safe-harbor provision
(otherwise they lose their safe-harbor status). The problem is with the people
who request the takedowns.

In particular, the DMCA (17 USC 512) requires that, in the takedown notice,
the sender must state that they have a "good faith belief that use of the
material in the manner complained of is not authorized by the copyright owner,
its agent, or the law", and anyone who "knowingly materially misrepresents
under this section that material or activity is infringing" is liable for
damages, both to the person who posted the not-actually-infringing content,
and to the service provider in their act of taking down and reinstating the
content.

This _should_ be a safeguard, and a sufficiently enthusiastic legal team ought
to be able to make the argument that there is a lot of knowing material
misrepresentation going on. (It's hard for robots to have good-faith beliefs!)
But I think very few people have been trying this argument in court. The EFF
has been involved in a few, relatively tiny cases, which seem to have been
successful, but nobody's been fighting this at scale.

[https://www.eff.org/cases/lawrence-lessig-v-liberation-
music](https://www.eff.org/cases/lawrence-lessig-v-liberation-music)

[http://en.wikipedia.org/wiki/Lenz_v._Universal_Music_Corp](http://en.wikipedia.org/wiki/Lenz_v._Universal_Music_Corp).

17 USC 512 is pretty readable: I'd recommend reading through it so you
understand what the law is and how best to use it to our ends.

[http://www.law.cornell.edu/uscode/text/17/512](http://www.law.cornell.edu/uscode/text/17/512)

~~~
Dylan16807
DMCA does get abused on youtube on occasion. But the main complaint is content
ID, which is completely unrelated.

~~~
geofft
Does Content ID exist because otherwise Google would run afoul of 17 USC
512(c)(1), that people could argue that Google is "aware of facts or
circumstances from which infringing activity is apparent" or something,
because even the general public knows that lots of YouTube videos use other
people's music?

It doesn't seem like it's in Google's inherent engineering interest to build
this system. Of course, that doesn't distinguish from "the law makes them" and
"their business relationships make them", but the hypothesis that Google feels
beholden to other companies needs a little more evidence.

For instance, Google's 2013 revenue was $50 billion, and $66 billion in 2014,
and the _entire music industry 's_ 2013 revenue was $7 billion (2014 data
isn't out yet). Placating the music industry doesn't seem like particularly
well-directed greed.

------
sandworm
Be careful when taking legal advice from websites. Ethical rules would
probably bar an attorney from writing such an article. (Advice to potentially
out of jurisdiction and/or unknown clients, online advice is a tricky thing
for bar associations.) I'm not saying that anything is incorrect, just that
this sort of advice has consequences.

I would add to the article that while copyright may not limit such speech,
contract law is a totally different matter. Check the fine print of you cable
contract and/or your NFL package subscription. Even your superbowl tickets
(tickets are contracts) will probably have limitations on how you can use NFL
content and marks. Everyday citizens may perhaps use the term "super bowl",
but someone in a contract with the NFL is not an everyday citizen. The NFL can
always come after them for breech of contract, triggering liquidated damages
clauses.

This is why many broadcasters avoid using NFL marks even where they have the
right to. They have signed contracts in exchange for, perhaps, highlight
reals, interview opportunities or other such content from the NFL. This then
binds them to whatever speech-limiting terms the NFL may include.

~~~
rayiner
> Be careful when taking legal advice from websites. Ethical rules would
> probably bar an attorney from writing such an article.

Ethical rules bar giving specific legal advice online, not generally
describing the law. Tons and tons of attorneys post general advice about what
you should and shouldn't do. To pick a random one that's the first hit on
Google:
[http://www.bpmlegal.com/tmdodont.html](http://www.bpmlegal.com/tmdodont.html).

~~~
sandworm
General descriptions are fine, but saying that a particular person (ie "you"
or "the public") is allowed to do something in relation to another (the NFL)
boarders on specific advice. There is a difference between explaining the
concept of "fair use" and saying that a particular use is fair.

On second thought I do think the article made a mistake. Sure, you can VHS the
superbowl, but good luck doing that on a modern TV/cable setup. Recording an
HD copy will likely involve bypassing encryption or other content protections.
Saying that anyone can "tape" the event is an overstatement. Some "taping" is
cool, other "taping" may violate any number of rules.

~~~
baddox
I don't see how specifying "you" and "the NFL" actually makes the advice
specific, unless there are specific laws mentioning one of those specific
parties. It's just as broad advice as saying that an individual can or cannot
describe a copyrighted broadcast.

------
rickdale
This was informative! I always wondered about those statements at the
beginning of the games, but never thought about them longer than the intro. I
wonder though, even with everything in the article, why Stephen Colbert danced
around the Super Bowl by mocking it with his Superb Owl coverage. Seems like
the kinda guy/show that would have just used super bowl and exposed what this
article is saying. Anyways, I find the super bowl obnoxious, but otherwise
love football and most sports.

[http://thecolbertreport.cc.com/videos/gzw6pe/superb-owl-
xlvi...](http://thecolbertreport.cc.com/videos/gzw6pe/superb-owl-xlviii---nfl-
extra-point-debate)

------
erehweb
Re "Any other use of this telecast or any pictures, descriptions, or accounts
of the game without the NFL's consent is prohibited." \- maybe someone should
write to the NFL to ask their permission to talk about the game with their
friends? Or send in a picture their kid drew and ask if they can put it on
their fridge? What would they say?

~~~
icantthinkofone
You didn't copy the part where they say you have the rights to private use as
in conversations with anyone you choose.

------
pluma
Amazing that is legal for the NFL to say that these things are illegal.

~~~
diminoten
Freedom of speech can be a strange thing.

~~~
rayiner
I feel like lying about legal obligations falls into the "yelling fire in a
theater" exception. Especially because it's a commercial broadcast. I'd go so
far as to say that it's no different than other contexts in which lying is
illegal (insurance fraud, etc).

~~~
larrys
You are the expert and not me but isn't this really like a scorched earth
technique? Essentially regardless of whether or how much of a leg that they
have to stand on they come at this full force with all of their resources in
order to make an example and to make potential adversaries quiver in their
presence by their legal might. Even if they would lose and even if they know
they are wrong. [1] And even if it costs them money to do so. It scares lesser
adversaries and even greater adversaries are not going to advise clients "it's
ok" because what do they stand to gain by doing so?

Your thoughts?

[1]Separately I remember as a kid seeing a sign at the horseback riding place
that said "ride at our own risk". My dad said "oh they just do that to that
you won't call a lawyer and start trouble I mean if they leave a trashcan in
the way of the horse and you get hurt of course that means nothing....(was a
long time ago but that was the gist). Seems similar to that in a much larger
way.

~~~
rayiner
I'm just talking about the general philosophical point of making it illegal to
lie about peoples' legal rights (e.g. how it's illegal in many states to
include unenforceable provisions in rental agreements). I don't think such a
law would be an infringement on free speech.

------
jgalt212
The worst practitioner of these practices in my opinion is Cusip Global
Services.

They say you can't label column in your database "Cusip" without signing a
license agreement with them. Furthermore, such license agreements make you
force similar licenses upon all your business partners.

~~~
MichaelGG
Citation/link/further information?

~~~
jgalt212
general info:

[https://www.cusip.com/cusip/cgs-license-fees.htm#cgs-
licensi...](https://www.cusip.com/cusip/cgs-license-fees.htm#cgs-licensing-
policies-faqs)

as to forcing other business partners to assert that they also are Cusip
license holders, I have seen and been asked to sign agreements with such
clauses attached.

------
smurph
They don't say anything is illegal, they say it is 'prohibited'. They don't
say who it is prohibited by, and since it's clearly not the federal government
you have to assume it's just prohibited by the NFL itself. Of course nobody
has to listen to a goddamn thing the NFL says, so why include the message?
It's likely a CYA thing on their part, since it gives them the power to
essentially disown any event or analysis that is related to their broadcast.
Also worth noting is how the NFL is obsessed with law enforcement culture.
Lots of the league employees are former police and FBI, so there is a good
chance they actually think they have some kind of authority over what a person
does or says in relation to the NFL.

------
Orangeair
How is it that they _can_ stop you from displaying it on TV's larger than a
certain size, then? I've always been confused about that.

~~~
jedberg
Technically anything over 55 inches is considered a public performance. It's
leftover from an old law:

[http://www.law.cornell.edu/uscode/text/17/110](http://www.law.cornell.edu/uscode/text/17/110)

------
qeorge
Or its because the advertisers want to get more than one use out of the ad?

The Super Bowl is not the only "big game". In fact its not usually even a
particularly great game, and its never a rivalry. So saying "Big Game" instead
of "Super Bowl" means they can use the ad again, and maybe even for another
sport!

Or its a conspiracy theory. That works too.

~~~
macbony
The Super Bowl is the only "Big Game" they refer to in the ads. Sure there are
other "big games", but these are Super Bowl ads pure and simple.

~~~
qeorge
You're saying there is _no other event_ that Dorito's could possibly use an ad
about "The Big Game" for? That's incorrect, and that's my point.

Why make an ad you can only use once, when you could easily tweak it and be
able to reuse it? Like you said, its not like anyone won't know you mean the
Super Bowl, when you're talking about _the big game_ on Super Bowl weekend.

~~~
DanBC
Can you show me any ad, from any time, for any product, that refers to "the
big game" meaning the superbowl and then, after tweaks, refers to some other
big game?

~~~
qeorge
That's my point - no tweaks are even needed. Why can't I show this same ad,
exactly like it is, before e.g., the UNC vs NCSU game?

I could! Unless I did something ill-advised, like saying "Super Bowl", which
in fact does only refer to one game.

~~~
cwyers
But nobody does, is the point.

------
Spoom
Businesses don't say "big game" because saying Super Bowl is illegal. They say
it because even if they're legally in the right, the NFL could easily bankrupt
them in court, and it's not worth the risk.

------
phkahler
Most americans don't even have the ability to record the show. I do, and might
if I feel like it, but to be honest it's not worth the disk space. It's a live
event so it's just not exciting after the fact.

------
jrochkind1
[http://en.wikipedia.org/wiki/Copyfraud](http://en.wikipedia.org/wiki/Copyfraud)

------
ctyrider
Who cares about Super Bowl anyway. Stopped watching this pointless
commercialized spectacle years ago.

~~~
EpicEng
Millions upon millions of people. Tens of millions actually. Highest ever was
~111 million people. So, sorry, but you don't represent the majority here, and
we don't care what your opinions on football are.

~~~
kbutler
111 million people is not the majority of the U.S., much less the world.
Compare what the majority considers real football: the world cup (500 million
to 1 billion?) Or the moon landing (14% of world population at the time or 530
million).
[http://en.m.wikipedia.org/wiki/List_of_most_watched_televisi...](http://en.m.wikipedia.org/wiki/List_of_most_watched_television_broadcasts)

Also, compare YouTube for really big numbers...

~~~
EpicEng
I didn't literally mean to say that a majority of the country watches
football. Even if I had (incorrectly), It wouldn't change the fact that it's a
huge portion of the country watching the same thing at the same time. And as
for "real" football, that's really neither here nor there.

