Threading the American Needle.... SCOTUS Rules Against NFL

In what has been described as the Sports Case of the Century, today the Supreme Court has laid down its ruling.... The conduct that the NFL sought approval of was considered "concerted activity" and in violation of The Sherman Act.

In a unanimous opinion authored by Justice Stevens (likely a tribute to the Justice during his last few weeks on the court), lacking both a concurrence or a dissent, the Justices said the league should be considered 32 SEPARATE teams, not a single business falling under the "Single Entity" exception to The Sherman Act.

The league sought to get the same broad protection that is enjoyed by professional baseball, where individual teams can make financial decisions as one business. The case arose from a small Illinois-based manufacturing company that previously held long-term contracts with NFL Properties, the licensing division (and separate company) of the NFL. But, right after the most recent licensing agreement between American Needle and NFL Properties expired, the leagued entered into a 10 year exclusive deal with Reebok. This meant that American Needle was no longer free to continue to negotiate their own manufacturing agreements with ANY team.

In the absence of this competition, fans have complained about skyrocketing prices of team merchandise, to which Justice Stevens addressed in his opinion by stating: "The fact that NFL teams share an interest in making the entire league successful and profitable, and that they must cooperate in the production and scheduling of games provides a perfectly sensible justification for making a host of collective decisions. But the conduct at issue in this case is still concerted activity under the Sherman Act."

So what does this mean for players and fans? In a statement released earlier today from NFLPA Executive Director DeMaurice Smith, he stated that: "Today's Supreme Court ruling is not only a win for players past, present and future, but a win for the fans." He also went on to note that they would continue to fight for a fair collective bargaining agreement in good faith to avoid a lockout.

Should Hollywood be nervous about the latest Supreme Court nominee?

A few days ago Eriq Gardner of The Hollywood Reporter wrote an article that warned Hollywood of the reprecussions that would occur should the Senate confirm President Obama's Supreme Court nominee, Elena Kagan.

While Mr. Gardner correctly asserts that much isn't known about Kagan's philosophy, is there a reason for movers and shakers in the entertainment industry to be worried about what Kagan's effect on the Supreme Court will mean for copyright protection?

The issue of "fair use" in copyright law is hardly concept that has been so precisely defined by courts so as to leave little room for interpretation. In fact, judicial history indicates almost the complete opposite. While Kagan was the Dean of Harvard Law School between 2003-2009, she recruited Lawrence Lessig and others who have a very liberal version of fair use for copyright holders.

To hear his opinion in more detail, watch the video below from March 6, 2010, in which Mr. Lessig delves into understanding fair use.

Kagan is most notorious in the IP world for her opinion on the infamous Cablevision case, in which she wrote from her role as U.S. Solicitor General. The Cablevision argument arose when Cablevision announced its intention to enlist a Remote Storage Digital Video Recorder system (RS-DVR) so that customers would actually be storing their recorded programs on Cablevisions internal servers rather than on a physical box in their own homes. The 2nd Circuit famously overturned the trial court in holding that this was not a violation of copyright holders rights in 2008. Naturally the case was appealed to The Supreme Court, which is where Kagan's opinion came in, where she recommended that SCOTUS not hear the case.

What do you think? Will Kagan push against Hollywood in protecting copyright holders rights, fight for stronger protections for First Amendment rights, or will it even matter because her confirmation won't get approved by the Senate? Should Hollywood be afraid?