Revolutionary and flawed ruling implies a right to view sporting events.
By ASHER MEIRPublished: SEPTEMBER 3, 2009 22:13Advertisement
The English Premier League is one of the world's leading and most lucrative soccer leagues. Its revenues stem primarily from the sale of broadcast rights. Much to its dismay, a Web site called livefooty.com, with some servers in Israel, began to stream Premier League games, allowing anyone with an Internet connection to view the games for free.
The Premier League acted to sue the Web site, but unfortunately was unable to find out who actually runs it. So it went to court to compel the owner to disclose his identity. In the meantime, the site's owner is represented anonymously through a lawyer, and the case reached court as Football Association Premier League versus John Doe. The league claims that the site is violating its broadcast rights; the site claims that since it is noncommercial and doesn't make any money from the broadcast, it is a protected use.
Tel Aviv District Court Justice Michal Agmon-Gonen declined to take action against livefooty. Her ruling is a classic example of all that can go wrong when judges arrogate to themselves the role of legislator.
The case presents subtleties on the narrow technical issues of international jurisdiction and identity disclosure. But in her ruling, Agmon-Gonen sidesteps these issues and jumps directly to the broadest possible understanding of the case. The case "arouses fundamental questions regarding intellectual property policy," she writes, including "the rights of the originator on the one hand and the rights of the users on the other." Instead of quoting relevant legal precedent, Agmon-Gonen begins by citing a number of general legal and even popular works discussing this policy issue.
Setting an alarmist tone, she quotes the jurist Jeremy Waldron, who warns: "There's a danger whenever we extend intellectual property rights that we will restrict the freedom of countless ordinary individuals one by one." Even though Waldron is talking about legislating property rights and not adjudicating the ones already legislated, Agmon-Gonen stretches Waldron's point beyond recognition. While Waldron states that intellectual property jeopardizes ordinary people trying to enjoy "stories, programs and ideas," Agmon-Gonen adds: "soccer."
The addition is far from obvious. There doesn't seem to be much of a threat to freedom in allowing exclusivity for live broadcasts of soccer games. Culturally and artistically, games are more alike than different. Even if we somehow accept that soccer games are like works of art, their artistic value would seem to remain the same in reruns as in live broadcasts. The idea that access to major sporting events is a basic human right is a provocative and far-reaching one. But Agmon-Gonen evidently goes even farther and believes that free access to all sporting events - anywhere, anytime - is a facet of this right.
Agmon-Gonen is not reticent about her desire to make policy; she states forthrightly and with minimal defense: "It is necessary to establish a new balance [of rights] that will be appropriate for the digital/Internet age."
Agmon-Gonen also adds distributive justice to her list of policy desiderata. She makes it clear that she considers it her responsibility to guarantee access to soccer broadcasts to people of limited means. As support for the right to inexpensive soccer games, she quotes a former Knesset member who expressed his belief that legislators (not judges) should act to keep Israeli (not English) games affordable (not free).
Alongside my objection to judges making decisions on policy grounds, and admitting it, I consider the policy reasoning flawed. I would be against a law that allowed free Internet broadcasts of proprietary sports events. (Such a law would in any case be against Israel's international obligations.) Making the games free because they are desirable is counterproductive. The games are desirable precisely because access is limited. This enables the teams to obtain the revenue needed for the high level of play, and it also creates the cachet that makes them prestigious.
To her credit, Agmon-Gonen does her best to find a legal basis for her policy decision (after all, she is a judge). However, in my opinion, there is some questionable legal reasoning involved.
Agmon-Gonen decides that even though Israeli law recognizes broadcast rights, streaming Internet access is not considered a "broadcast." The reason is that the law defines broadcast as something transmitted "through wires or wirelessly." This is supposedly different than Internet, which evidently reaches your computer neither through wires nor wirelessly but through some other medium.
Agmon-Gonen also considers the Internet broadcasts "fair use." The fair-use doctrine is a widely accepted legal principle meant to keep copyrights from choking legitimate public uses of creative works.
To evaluate the judge's claim here, consider the usual criteria for fair use: the public value of the use; whether the use is transformative and not merely derivative; the scope of the use; and the effect on the work's value. Apply these criteria to an exact copy of an entire broadcast of an ephemeral sporting event made at the exact same time as the for-pay original. It is clear that the Web-casts meet virtually none of the criteria for fair use.
Prominent Israeli legal blogger Jonathan Klinger adds an additional criticism of the fair-use ruling: Fair use is considered a defense against infringement claims, not an affirmative right as Agmon-Gonen proposes.
Even more than I disagree with Agmon-Gonen's policy prescriptions, and with her legal reasoning, I feel it is necessary to expose and condemn the tendency of Israeli judges to view themselves as legislators who attempt to set public policy in the courtroom.
email@example.comAsher Meir is research director at the Business Ethics Center of Jerusalem, an independent institute in the Jerusalem College of Technology (Machon Lev).
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