Technology & Copyright Law: Illuminating the NFL's 'Blackout' Rule in Game Broadcasting

Abstract

Copyright is critical to protecting sports broadcasts and new technology has evolved to disseminate these broadcasts to the many people that enjoy professional sports. Because of new digital rights in the copyright statute, the NFL has very strong copyright protections that cover Internet, satellite, television, and radio licensing of its broadcasts. This article analyzes the NFL's "blackout" rule in the context of growing technology and increased copyright protection.

In NFL v. McBee & Bruno's, Inc., the Eighth Circuit held that defendant sports bar’s display of "blacked-out" games did not fall under an exemption regarding common use since satellite dishes were not commonly found in private homes and they infringed despite their use of the "clean feed" to the satellite. A "blackout" blocks certain programs from being broadcast in a particular market. Attempting to incentivize fans to come to football games, the NFL "blacks out" games that are not sold out within 72 hours of game time within a 75-mile radius of the stadium. Today, although there are roughly 30 million satellite dishes in use in homes in the United States, which is thirty times more than the case says that there were in 1986, the games within the "blacked-out" zone are still "blacked-out" on satellite TV.

The "blackout rule" has been widely criticized by professional sports fans. Some people blame the teams’ poor performance for "blackouts." Others blame the fans for "blackouts." Some teams, such as the Oakland Raiders and the Detroit Lions, had many games "blacked-out" in the 2009-2010 season. The NFL responded in September 2009 by showing "blacked-out" games on NFL.com on a delayed basis at no cost in affected markets. But many fans do not use the NFL's authorized tools to watch games but use Internet streaming and other technologies to watch live games within the "blacked-out" area. Instead of increasing the value of its game broadcasts, the NFL's "blackout" rule may actually decrease the value of game broadcasts. The "blackout" rule should be reevaluated as it may not be the best way to keep fans engaged and thus allow the NFL to generate maximum revenue from licensing its copyrighted broadcasts.

Keywords: Copyright, NFL, sports law, blackout rule, technology, communications, satellite, T.V., fans, professional sports, broadcast