There is a story up on the NYT web (link here) about a new IP controversy in which a sports blogger, Brian Bennett working for the Courier Journal of Louisville, KY, was ejected from the press box of the Louisville vs. Oklahoma State baseball game for discussing game action during the game in his live blog.

The NCAA contends that their television and radio contracts prohibit any alternative live communication of game action during a game, and that they were therefore justified in ejecting Bennett. The Courier Journal maintains that they were within their First Amendment rights in reporting on the news of the game.

While the litigation over this will likely be complicated, I would hazard an opinion that under existing copyright law, this will likely be judged fair use, based on what the lawyers call a "negative harm, implied consent" situation. Blog accounts of a game are not even close substitutes for the televised view of the action, or even running radio accounts, since the blogger has to slowly (relative to game action) type up his account of what is happening. On the other hand, a blog account that indicates a game is getting exciting has the potential to motivate otherwise uninterested parties to turn on their TV or radio and join the game. This is equivalent to a rave book review, which, in turn, is the basis of the "negative harm, implied consent" fair use doctrine.

Of course, fair use does depend on the circumstances. If this were a cricket game, blogging it might well be a contract violation.

In any case, this is one to watch, so stay tuned.

The answer is whoever owns the venue has the right to set the ground rules. Justice Holmes pointed out that no one has the right to shout "Fire" in a crowded theater. (The number of patrons is irrelevant.) The reason is that the patrons are paying to see a performance, not to injure and violate the rights of others, including the property owners.

The owner of the stadium has the right to evict the blogger, Mr. Bennett, and to prohibit blogging by attendees, as well as the use of computers if they so choose.

The Courier Journal is wrong on the first amendment, which was written to prevent the government from interfering with speech, assembly, and religion. It doesn't grant someone the right to violate someone else's property rights. If you don't believe me, try barging into your neighbor's bedroom and reciting the first amendment at 2 AM. Or blogging in the press box in the stadium cited above.

Via email, Neil Wehneman comments:

I enjoy reading Against Monopoly. I'm also a law student. However, I think you are misconstruing the basis of the NCAA story regarding an ejected blogger.

That story likely turns not on the First Amendment, or even copyright. It's a land use question.

The NCAA, through the owner of the stadium, has set certain requirements on those entering the stadium and/or press box. If you don't accept those conditions, you are a trespasser. The journalist violated the conditions by live-blogging, and he was ejected from the premises.

Now, if the NCAA was considered a state actor (my current understanding is that they are not, although there is a High School Athletic Association case currently being litigated that might change the NCAA isn't a state actor), the First Amendment would apply. But since the NCAA is considered a private actor, they have no First Amendment requirement to allow speech.

Don't get me wrong: I think the NCAA policy is silly. But I think you're missing the basis of the NCAA's power. It's not copyright. It's land use.

I can't even wrap my head around the mindset in which blogging something can "injure or violate" anyone. :P