NYFL* offered original airing of SB 1 tape for one million dollars and turns them down..

Ian · Jan 15, 2016

AndyJohnson said:
Even more reason he has no reason to be asking for $1,000,000.

Yeah, that certainly changes things. It's essentially like selling stolen property. Even if it was designated to be thrown away, I don't know the legalities there but I'm pretty sure it's still illegal.

JJDChE · Jan 15, 2016

PatsFanSince74 said:
Well, since he won't identify himself, one can't make a case as to whether it is "legally his" one way or the other. However, I think it is reasonable to question the provenance of the tape and whether he has legitimate possession of it since he won't identify himself. Until we can know how the person who possesses the tape came into its possession, we can't say whether or not he possesses it legally. Just "having" something doesn't make it "yours."

As for your second point, IP law is pretty clear. The tape belongs to its creator or to the entity which commissioned its creation, depending on the terms of the original contract, unless one or the other party transferred title to the person who now possesses it. If he had evidence of such a transfer, I suspect he would have come forth in an open fashion.

"Fair Value" assumes a market. There can only be a "market" if one possesses legitimate title to what one is selling. I was not suggesting that $50,000--100,000 is the "value" of the tape (one could argue that the tape is worth seven or eight figures if it came to the open market in a legitimate manner), but rather what I thought reasonable sum for a rightful owner to pay for someone who had cared for their property over a period of time. However, the rightful owner would also be within his or her rights to sue the person who had maintained possession of their property and deprived them of its use and the benefits that would accrue to them therefrom. In other words, by offering $50,000--100,000 to someone who had kept its property in their possession in an, at best, questionable manner, one could argue that the League was being generous.

That's quite an invented narrative. You *must* be a lawyer.

XLIX said:
As mentioned before, I have no idea what the rules were in the 60's, but here in the current day that is not how it works. If I go to a store and buy a VHS tape, that VHS tape is legally mine. If I record tomorrow's Patriots game on it, the VHS tape is still legally mine, but the intellectual property on it is not, and I have no legal right to sell that tape to anyone else. I don't even have the right to broadcast it for free if I wanted to.

He's not selling them the broadcast rights. He's selling them the physical recording. Unless it is proven otherwise we must assume he came by it legally.

It would be like if you had purchased or were given a VHS/DVD/recording of some movie of no real importance. Turns out 40 years later that this movie was the first movie by Warner Brothers (or insert famous movie production house here). Now this movie in your possession is the last known copy of the movie. Does this recording belong to Warner Brothers?

QuantumMechanic · Jan 15, 2016

JJDChE said:
It would be like if you had purchased or were given a VHS/DVD/recording of some movie of no real importance. Turns out 40 years later that this movie was the first movie by Warner Brothers (or insert famous movie production house here). Now this movie in your possession is the last known copy of the movie. Does this recording belong to Warner Brothers?

If a purchase from the copyright holder (or his agent) is involved the rules are completely different. There is something called the "first sale doctrine" that says if you legitimately purchase a videotape or CD or DVD/blu-ray you can do whatever you want with the tape/disk other than making copies of it or giving public showings. Specifically, you can rent the tape/disk out for a profit (and the copyright holder can't stop you) and you can sell it.

Presumably this tape was not purchased from the NFL or the relevant network(s) so the first sale doctrine doesn't apply.

You are correct that you do own the physical tape and it can't be taken away from you. However the copyright holder -- who absolutely does own what's recorded on the tape -- can block you from selling the tape as long as their content is on it. You are of course free to erase the tape and then sell it. Or destroy it. Or tell them that since they're not letting you sell it you don't have room for it and are going to destroy it.

XLIX · Jan 15, 2016

JJDChE said:
He's not selling them the broadcast rights. He's selling them the physical recording. Unless it is proven otherwise we must assume he came by it legally.

Yes I know, but it is a reproduction of their broadcast. You cannot tape tomorrow's Patriots game onto a VHS or DVD or whatever and then sell that physical recording. Whether the rules were different 50 years ago, I have no idea.

Don't get me wrong, I'm not saying the NFL has the right to confiscate the thing. I'm just saying that as long as it contains NFL intellectually property, he may not sell it without their consent. Obviously they would consent to him selling it back to them at the right price, but methinks he can't just go to eBay because if he could, then he probably would have already.

JJDChE said:
It would be like if you had purchased or were given a VHS/DVD/recording of some movie of no real importance. Turns out 40 years later that this movie was the first movie by Warner Brothers (or insert famous movie production house here). Now this movie in your possession is the last known copy of the movie. Does this recording belong to Warner Brothers?

It's nothing like that, so I see no point in answering that analogy question.

PatsFanSince74 · Jan 15, 2016

JJDChE said:
That's quite an invented narrative. You *must* be a lawyer.

He's not selling them the broadcast rights. He's selling them the physical recording. Unless it is proven otherwise we must assume he came by it legally.

It would be like if you had purchased or were given a VHS/DVD/recording of some movie of no real importance. Turns out 40 years later that this movie was the first movie by Warner Brothers (or insert famous movie production house here). Now this movie in your possession is the last known copy of the movie. Does this recording belong to Warner Brothers?

As for your first comment above, no, I'm not a lawyer, but I am surrounded by them. However, I don't need to be a lawyer to know the legal standards in effect here, as I spend a lot of time worrying about protecting my own IP, have spent a lot of money on lawyers who help me do so and am familiar with how this works.

I think Quantum Mechanic explained the legalities regarding the inaccuracies in your second quote above and also did a very nice job explaining the "first sale doctrine," which I did a much more clumsy job explaining in my "invention."

If the guy has a bill of sale from the NFL or the Network, or from someone to whom one or the other legally transferred title to the tape, and indeed has, as you state, "come by it legally," then he's in the clear to a limited and clearly defined degree.

But, if he did have such a document, there's little doubt that he wouldn't be hiding behind lawyers and not identifying himself. In fact his lawyer has probably warned him that he will immediately be slapped with a stack of filings a mile high once he does. I wouldn't be surprised if the NFL hasn't already filed a "John Doe" writ in this regard.

This is a guy who thinks he's going to get a payday. But, unless he sells the tape on the black market (and there is a huge market for such transactions) to someone who will keep it in a vault with the stolen art he's purchased, he's going to be fortunate if he doesn't end up being sued.

$50--100k is reasonable compensation for handing the League or Network's property over to the proper owner after caring for it for the last 50 years. Anything more would be extortion.

JJDChE · Jan 15, 2016

QuantumMechanic said:
If a purchase from the copyright holder (or his agent) is involved the rules are completely different. There is something called the "first sale doctrine" that says if you legitimately purchase a videotape or CD or DVD/blu-ray you can do whatever you want with the tape/disk other than making copies of it or giving public showings. Specifically, you can rent the tape/disk out for a profit (and the copyright holder can't stop you) and you can sell it.

Presumably this tape was not purchased from the NFL or the relevant network(s) so the first sale doctrine doesn't apply.

You are correct that you do own the physical tape and it can't be taken away from you. However the copyright holder -- who absolutely does own what's recorded on the tape -- can block you from selling the tape as long as their content is on it. You are of course free to erase the tape and then sell it. Or destroy it. Or tell them that since they're not letting you sell it you don't have room for it and are going to destroy it.

OK, but here is what I come up with:

The first-sale doctrine creates a basic exception to the copyright holder's distribution right. Once the work is lawfully sold or even transferred gratuitously, the copyright owner's interest in the material object in which the copyrighted work is embodied is exhausted. The owner of the material object can then dispose of it as he sees fit.

Unless it is proven that this person came into it illegally, I don't see how it isn't within his rights to sell it. It would seem, based on this interpretation of 'first sale doctrine', he is actually free to sell it to whomever he chooses.

I don't know why we would presume he came into it illegally without any proof of that whatsoever. My assumption is that he got it legally until there is some evidence to show otherwise. That being the case, he should get whatever he can for it.

JJDChE · Jan 15, 2016

PatsFanSince74 said:
As for your first comment above, no, I'm not a lawyer, but I am surrounded by them. However, I don't need to be a lawyer to know the legal standards in effect here, as I spend a lot of time worrying about protecting my own IP, have spent a lot of money on lawyers who help me do so and am familiar with how this works.

I think Quantum Mechanic explained the legalities regarding the inaccuracies in your second quote above and also did a very nice job explaining the "first sale doctrine," which I did a much more clumsy job explaining in my "invention."

If the guy has a bill of sale from the NFL or the Network, or from someone to whom one or the other legally transferred title to the tape, and indeed has, as you state, "come by it legally," then he's in the clear to a limited and clearly defined degree.

But, if he did have such a document, there's little doubt that he wouldn't be hiding behind lawyers and not identifying himself. In fact his lawyer has probably warned him that he will immediately be slapped with a stack of filings a mile high once he does. I wouldn't be surprised if the NFL hasn't already filed a "John Doe" writ in this regard.

This is a guy who thinks he's going to get a payday. But, unless he sells the tape on the black market (and there is a huge market for such transactions) to someone who will keep it in a vault with the stolen art he's purchased, he's going to be fortunate if he doesn't end up being sued.

$50--100k is reasonable compensation for handing the League or Network's property over to the proper owner after caring for it for the last 50 years. Anything more would be extortion.

Wouldn't you say the burden of proof would be on the NFL? I don't know what is going on behind the scenes here, but if they have proof he got it illegally it's a whole different story. If they don't have proof, there isn't much they can do.

Granted, the NFL could probably make the guy's life miserable and hold it up in court forever even if they didn't have proof. And we know, that certainly wouldn't be above the pettiness of the NFL.

Froob · Jan 15, 2016

Does it matter that he filmed it in the 60's or do laws today dictate the legality of obtaining the video he has?

patchick · Jan 15, 2016

JJDChE said:
Unless it is proven that this person came into it illegally, I don't see how it isn't within his rights to sell it.

I'm guessing it's very simple: the copyright holder never sold or transferred a copy of this work to ANYBODY, therefore he can't have acquired one under the "first sale" doctrine.

JJDChE · Jan 15, 2016

patchick said:
I'm guessing it's very simple: the copyright holder never sold or transferred a copy of this work to ANYBODY, therefore he can't have acquired one under the "first sale" doctrine.

Read the quote I posted. First sale doctrine covers copies that were given away.

JJDChE · Jan 15, 2016

XLIX said:
It's nothing like that, so I see no point in answering that analogy question.

How is it different?

patchick · Jan 15, 2016

JJDChE said:
Read the quote I posted. First sale doctrine covers copies that were given away.

Which is precisely why I said "or transferred."

But regardless, they didn't give the recording to him. He doesn't even claim they did. He says his dad worked at a broadcast facility which made a tape at the time of the broadcast. That is NOT the copyright owner giving anybody a copy to own and cherish.

PatsFanSince74 · Jan 15, 2016

patchick said:
Which is precisely why I said "or transferred."

But regardless, they didn't give the recording to him. He doesn't even claim they did. He says his dad worked at a broadcast facility which made a tape at the time of the broadcast. That is NOT the copyright owner giving anybody a copy to own and cherish.

If that's the case, we now know why he is hiding behind a lawyer. It's possible if not probable that his father wasn't even given the tape in a formal manner. I'm not saying he stole it, but I doubt that anyone with authority to represent the copyright holder gave it to him with the intention of ceding such rights to his dad. Otherwise, this would all be out in the open. The guy is either hopelessly naive or he is trying to extort money from the nfl with the implied threat of selling it on the black market.

Froob · Jan 15, 2016

PatsFanSince74 said:
If that's the case, we now know why he is hiding behind a lawyer. It's possible if not probable that his father wasn't even given the tape in a formal manner. I'm not saying he stole it, but I doubt that anyone with authority to represent the copyright holder gave it to him with the intention of ceding such rights to his dad. Otherwise, this would all be out in the open. The guy is either hopelessly naive or he is trying to extort money from the nfl with the implied threat of selling it on the black market.

If he'd just own up and admit he stole it it'll be a small fine and we could move on.

PatsFanSince74 · Jan 15, 2016

JJDChE said:
Wouldn't you say the burden of proof would be on the NFL? I don't know what is going on behind the scenes here, but if they have proof he got it illegally it's a whole different story. If they don't have proof, there isn't much they can do.

Granted, the NFL could probably make the guy's life miserable and hold it up in court forever even if they didn't have proof. And we know, that certainly wouldn't be above the pettiness of the NFL.

The burden of proof would be on the nfl if this were one of many copies and the content were in the public domain, but since it is apparently the only copy, the league and the broadcast network have every right to claim that he doesn't have legitimate title to its contents.

nabwong · Jan 15, 2016

So that's the story. I thought it was something like this....

Goodell: We're celebrating every past Super Bowl for the 50th year. Who has the footage?
NFL tech: We didn't archive it but I heard Belichick has a sideline copy.

Phone call....

Goodell: Belichick, do you have a copy of Super Bowl 1?
Belichick: Remember all those tapes you destroyed? Yeah......

XLIX · Jan 15, 2016

Froob said:
If he'd just own up and admit he stole it it'll be a small fine and we could move on.

I don't think it's a matter of a"small fine" or anything to do with the legality of how he got it. I have to think that the Statute of Limitations is less than 49 years. The question now comes to reselling the copyrighted material.

I have very little doubt he would put it up for the high bidder if he thought he could. The fact that he hasn't suggests to me that his lawyer has advised him against it.

One telling quote from the article: "Harwood and his client still wanted to work with the NFL so that the world could see the tape." TRANSLATION: He wants to sell copies of it.

convertedpatsfan · Jan 15, 2016

denverpatsfan said:
Have to side on the NFL this time. Who the **** does that guy think he is? He didn't pay to produce it! Does he own the NFL films? Does he own the TV station that broadcast the game? If he were a true Packer fan or Chefs fan he would just donate it. **** him.

Every time I think I've read the stupidest thing on the internet, someone rises to the challenge and proves me wrong.

If he donated it, do you think the NFL wouldn't just package it up and sell it back to the fans for a massive profit?

This is a league that goes out of it's way to sue fans for putting together gifs from games, just ripped a franchise away from a city for the second time for not consistently selling out to watch the ****tiest football imaginable besides the Browns and Lions, and constantly defecates all over every loyal paying customer.

So what exactly would donating the video accomplish? Without a doubt, the league would just sell it back to fans. And don't forget the part where they tried to work with the NFL to show it to the fans, and the league sent him cease and desist letters. They call up the league to work something out, the league sends them to legal.

This guy holds a viable commodity. The league with $7B in revenue does not exactly need donations, especially one that is openly hostile towards it's customers.

Feel free to donate all your most prized possessions to the millionaires of America. But don't expect the rest of us to think you're a genius for doing so.

convertedpatsfan · Jan 15, 2016

nabwong said:
So that's the story. I thought it was something like this....

Goodell: We're celebrating every past Super Bowl for the 50th year. Who has the footage?
NFL tech: We didn't archive it but I heard Belichick has a sideline copy.

Phone call....

Goodell: Belichick, do you have a copy of Super Bowl 1?
Belichick: Remember all those tapes you destroyed? Yeah......

Maybe that's what happened to that Ray Rice tape too. Maybe Goodell is so ****ing stupid he keeps mixing up the VCR and shredding machine.

JJDChE · Jan 15, 2016

patchick said:
Which is precisely why I said "or transferred."

But regardless, they didn't give the recording to him. He doesn't even claim they did. He says his dad worked at a broadcast facility which made a tape at the time of the broadcast. That is NOT the copyright owner giving anybody a copy to own and cherish.

Who says it wasn't given to him or his father? Is there a documented chain of ownership? If not, it's all just hearsay. If the NFL had proof it did not authorize change of ownership they could have sued him as soon as he said he had it. Yes?

NYFL* offered original airing of SB 1 tape for one million dollars and turns them down..

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