20
Sep/10

"Copyright and Football"


NY Times Freakonomics Blog: Copyright and Football:

The theory behind copyright is simple – if we allow anyone to copy a good new idea, then no one will come up with the next one.  The theory makes perfect sense – in theory.  In previous posts, however, we have described how fashion designers, chefs, comedians and pornographers all continue to create, even though others are free to copy their fashion designs, recipes, jokes, and . . . images.  In this post, we’ll take a look at something different: football.

I’m favorably disposed towards the authors’ argument that appropriate IP protection should be considered in an industry-specific context, however this struck me as a somewhat superficial column. The authors don’t highlight sufficiently that they are analyzing non-commercial behavior, specifically strategic behavior in the GAME of football (as opposed to the commercial activity of providing the entertainment service of football). And yet, even in this non-commercial domain,  there is still (private, contractual) IP protection encoded in the rules of NFL football – namely, trade secret protection.  Recall the New England Patriots getting caught in SpyGate.

And it never helps one’s credibility to make a major (from the point of view of an IP lawyer) mistake in the first sentence – copyright doesn’t protect against the copying of ideas but against the copying of the specific execution of ideas.