Earlier this week, the Supreme Court of the United States of America issued an important decision on the case of American Broadcasting Cos. Inc., Et Al. v. Aereo, Inc. The key issue in this case was whether Aereo could broadcast copyrighted content (which it did not own the copyright to) that appeared on TV without obtaining a license to distribute the content. The Supreme Court ruled against Aereo, holding that its broadcasting of copyrighted content without a license from the copyright holder was unlawful.
Although the case hinged on technical, copyright law concepts which are too lengthy for discussion here, the Aereo case serves as a reminder for a very basic copyright law principle:
DON'T USE ANOTHER'S COPYRIGHTED MATERIAL UNLESS YOU FIRST OBTAIN THE LICENSE TO DO SO
But what is a copyright? According to the U.S. Copyright Office, a copyright is a "form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works."
This means that a work must be:
Copyrightable subject matters include, but are not limited to:
Notably, copyright law does not protect:
However, copyright law may protect how facts, ideas, systems and methods of operation are expressed.
Additionally, copyrights do not need to be registered anywhere for protection to exist. However, there are benefits to registering a copyright with the U.S. Copyright office, such as having the facts of the copyright on public record and also granting the copyright holder certain legal remedies such as statutory damages and legal fees in litigation.
It does not take very much for someone to have copyright protection, so people/businesses should be extra careful when using content in any way that they did not create. When it comes to using material this kind of material, err on the side of caution, and don't be like Aereo. Seek a license to use the work, which you will likely have to pay for, but will come far cheaper than any potential copyright infringement lawsuit.
The World Cup is in full swing in Brazil and soccer fans around the world have been glued to their TVs/social media platform of choice to follow the games. So far, Team USA is 1-0 in a tough division, but the country is ever hopeful.
Major sporting events such as the World Cup always create a global uptick in sports betting. In particular, Asia has seen a large increase in illegal sports betting (See here).
As you may be aware, sports betting in the United States is extremely limited. Currently, the only state that has legal sports betting is Nevada. However, in 2011, a sports betting referendum was passed by voters in New Jersey. Subsequently, the NCAA, NFL, NBA, MLB and NHL filed suit against New Jersey, attempting to block the state from allowing sports betting.
The District Court for the District of New Jersey held that the State's sports betting initiative was preempted by the Professional and Amateur Sports Protection Act ("PASPA") and that PASPA was constitutional. This ruling meant that New Jersey's implementation of sports betting was in violation of PASPA, which are a preexisting series of federal laws that were found to be legally created by Congress. Interestingly, New Jersey had the opportunity to become exempt from PASPA after its adoption, but failed to do so. New Jersey appealed the District Court's decision, but it was upheld by the Third Circuit Court.
New Jersey is now attempting to appeal the Third Circuit's decision to the United States Supreme Court, and is currently awaiting the Supreme Court's response as to whether they will take the case. The State is confident that the case will be accepted and that the Court will find in its favor.
However, if the case is not accepted by the Court, State Senator Ray Lesniak has claimed that he will introduce an amendment to state law that will allow "legal" sports betting in casinos and racetracks within New Jersey. On June 16, 2014, Lesniak appeared on a radio show and announced that the State will move ahead with its plans to implement sports betting should the Supreme Court decline to accept the case. During his interview, Lesniak went so far as to say that sports betting will be in place by Week 1 of the NFL season in September.
Lesniak likened New Jersey's challenge of PASPA to Colorado's legalization of marijuana, which is unfair. Marijuana reform had growing support across the country and within the federal government, whereas sports betting has been largely seen as an illegal activity outside of Nevada. In any event, it would not be surprising for the Supreme Court to take this case as a means of clarifying states' rights in the face of federal legislation.
Lesniak's latest comments have raised the stakes in this already interesting litigation, and it appears as if New Jersey is ready to defy federal law and the collective will of the major sports leagues. This litigation will certainly be interesting to follow, whether or not the Supreme Court decides to take the case.
One thing is for certain, should New Jersey legalize sports betting, its casinos stand to make even larger sums of money. Perhaps more importantly, if New Jersey succeeds in legalizing sports betting, other states may soon follow.
I will be following this story closely over the next several months.
Quiles Law is an esports and sports law firm based in New York City.
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Attorney Advertising. The information presented in this site should not be construed to be formal legal advice nor is it intended to form any attorney/client relationship. Our attorneys, collectively, are licensed to practice law in the States of New York, New Jersey, and Pennsylvania. Copyright Roger R. Quiles, Esq., 2018. All rights reserved.