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National Football League and St Louis Football Cardinals Inc v McBee and Brunos Inc et al

National Football League and St. Louis Football Cardinals, Inc., v. McBee? & Bruno’s Inc., et al.
Lexis: 792 F.2d 726 (8th Cir. 1986)

Facts: Plaintiffs are the National Football League (NFL) and the St. Louis Football Cardinals (Cardinals). The defendants are owners, corporate or individual, of St. Louis area bar restaurants that are located within a 75 mile radius of Busch Stadium, where the Cardinals play home football games. The Plaintiffs allege the defendants violated federal copyright laws by showing Cardinals’ home games that had been “blacked out” by the NFL because the game was not sold out. On dates before November 19, 1984, all defendants except for two picked up the live feed of blacked out Cardinals’ home games. It is also known that these defendants showed the games during business hours and received an increase in business because of showing the games.

Procedural Posture: On November 19, 1984, the plaintiffs requested and the District Court granted a temporary restraining order which prevented defendants from intercepting and showing the home game scheduled for the following Sunday. The District Court found that the telecasts were copyrightable and that plaintiffs owned the copyright to these telecasts. The Court also found that the display of the clean feed transmissions of those telecasts violated these rights. A permanent injunction issued on September 13, 1985, prohibiting the defendants from intercepting and showing plaintiffs’ programming. The defendants challenge the decision on four grounds:
1. that the evidence presented by plaintiffs to show irreparable injury was too speculative to support the issuance of a permanent injunction;
2. that defendants’ display of blacked-out home games falls under statutory limitations on exclusive rights of a copyright owner;
3. that defendants’ did not infringe on plaintiffs’ copyright because they intercepted the clean feed rather than the dirty feed; and,
4. no permanent injunction can issue concerning works which are not already in existence.

Holding: The Court held that all but two defendants violated copyright laws and affirmed the District Court’s decision.

Analysis: I will take the analysis part-by-part based on the defendants’ contentions

1. The evidence presented by plaintiffs to show irreparable injury was too speculative to support the issuance of a permanent injunction.
“Copyright law long has held that irreparable injury is presumed when the exclusive rights of the holder are infringed.” Sony placed a limitation on that general rule that if the infringement was not for commercial use, then the holder needed to demonstrate the likelihood of future harm. “If the use is intended for commercial use, that likelihood may be presumed.”
The Court stated that the record was clear that the defendants did ‘far better’ business of days which they showed the blacked-out Cardinals’ home games. This is enough to presume the likelihood of irreparable harm. However, the Court also stated that although the plaintiffs had yet to show any concrete evidence that more people attend games if it is not televised and that a full stadium makes for a better television program, the District Court’s finding that this was so was not clearly erroneous.

2. Defendants’ display of blacked-out home games falls under statutory limitations on exclusive rights of a copyright owner.
The defendants rely on the section of Copyright Law which states that no liability can be imposed for “a communication of a transmission embodying a performance by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes.” The Court states that the issue here is how likely the average patron who watches a blacked-out Cardinals game at one of the defendant restaurants in question is to have the ability to watch the same game at home? The Court reasons that because satellite dishes like the ones used by defendants were so rare in the United States in general, and mainly only owned by restaurant owners that the likelihood of a patron being able to watch at home was not very likely.

3. Defendants’ did not infringe on plaintiffs’ copyright because they intercepted the clean feed rather than the dirty feed.
This argument rests on the fact that defendants claim the dirty feed is the feed which is fixed under the copyright act. However, the Court says the plaintiffs copyright protections was obtained for the game, the game action and the noncommercial elements of the game. All of these were present in the clean feed. To hold otherwise would go against Congress’ clear wishes.

4. No permanent injunction can issue against works which are not yet in existence.
Section 502(a) of the Copyright Act states a court can “grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.” The Court states that “it would subvert the Congressional goal to deny a permanent injunction in this case, where in addition to the danger of continued infringement the notice requirement of 411(b) is met by the fact that plaintiff’s home games are scheduled and the blackout decisions are made on a well-known standard.

Future Importance: This case I believe has two questions which may have or already have had future importance. First, the blackout rule is still in effect, in large part due to the fact that the courts will not allow people to illegally broadcast the games when they are, in fact, blacked out. Had this case not been decided in favor of the NFL, I truly believe the blackout rule would have disappeared. Second, a question this case raises is what about issue number 2 raised by defendants? Satellite dishes are MUCH more prominent than they were in 1984 and much cheaper to have than they were back then. I would say that there is not a huge difference between people who carry satellite television and those who carry cable. If this case were decided now, would the bar owners won on their second argument because the likelihood of someone being able to pick up the feed was much greater now than in the past? The court definitely leaves this open and unanswered.



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