BROOKE GLADSTONE: We're back with On the Media. I'm Brooke Gladstone.
BOB GARFIELD: And I'm Bob Garfield. Watching the local news each night or any of the sports highlight shows you'll always find the day's sports highlights -- the great shot, the winning homer, the fatal Nascar crash and so forth. So conspicuous by their absence for the past two weeks at least on non-NBC affiliates are highlights from the Olympic Games in Salt Lake City. Joining us now to explain the Olympic news blackout is David Wittenstein, an intellectual property lawyer with Dow, Lonis and Albertson [sp?] in Washington, DC. Mr. Wittenstein, welcome to OTM.
DAVID WITTENSTEIN: Thank you very much.
BOB GARFIELD: Now I don't watch much primetime but I do watch a lot of news, and in the past two weeks I have seen a lot of baseball players stretching in Florida, a lot of college basketball highlights, and almost no ski jumping! What's the deal?
DAVID WITTENSTEIN: NBC sends out to all of the TV stations something it calls News Access Guidelines that tells them how much they can take and when they can show it, and it's pretty restrictive because NBC doesn't want to see its big investment diluted by having ABC and CBS and Fox and everybody covering the games just the way you're seeing it on NBC affiliates.
BOB GARFIELD: How can they govern how the media covers news events? Isn't there a fair use doctrine which permits news organizations to run otherwise copyrighted material if there's a genuine news value?
DAVID WITTENSTEIN: There certainly is, and the problem with sports in particular is that there's really only been one reported case on Fair Use of Sports Highlights. The case is about 20 years old, and it suggests that there is very limited if any fair use for sports highlights.
BOB GARFIELD: Well if that's the only court precedent, is there some sort of gentleman's agreement that allows networks to share the clips that they obviously share now?
DAVID WITTENSTEIN: Yes, absolutely, and lots of networks do have sharing arrangements, but otherwise a lot of the limits that are placed on how much is shared really are through these News Access Guidelines.
BOB GARFIELD: Considering there's only one 20 year old case on this legal question and considering that the networks more or less conspiratorially ignore the ruling in that case and have been for decades, why do you suppose that nobody has straightforwardly challenged the decision or at least tried to create some new law by testing the waters in this area and running, say, NBC's figure skating footage against NBC's will?
DAVID WITTENSTEIN: You know it's a risk against a, a, a well-heeled copyright plaintiff that has spent a lot of money and has every incentive to pursue an infringement claim very vigorously. I actually happen to believe that there have been enough developments in the law about how news uses are favored and preferred types of uses that I think you'd have a - a good fighting chance. The case that's the 20 year old case takes the position, for example, that almost by definition something that you want to show on your news program that's a highlight is by definition so qualitatively important -because it's a highlight - that it can't constitute fair use. Well that doesn't make any sense. So--
BOB GARFIELD: And here's Wally Bruckner [sp?] with the parts of the game that you really wouldn't have cared to see!
DAVID WITTENSTEIN: Precisely. You could probably be allowed to show the things that nobody wants to see.
BOB GARFIELD: Oh, like the Jeff Greenfield Show. [LAUGHTER] You -- no need to comment. David Wittenstein, thank you very much.
DAVID WITTENSTEIN: It's been my pleasure.
BOB GARFIELD: David Wittenstein is a partner with the law firm Dow, Lonis and Albertson in Washington, DC.