The CCIA complaint to the FTC about the exaggerated copyright warnings attached to sportscasts is a fuzzy oddball of a complaint. The CCIA represents "consumers"? Who are the "consumers" of sports programming, anyway? Arguably, the audience is the product being sold-their eyeballs are being traded to content owners in exchange for broadcast rights. The sports leagues are censoring people by being conservative in their copyright warnings? What about copyright skeptics who are overly radical in theirs? The government should control the way folks describe legal rights? Like a good deal of invitations to agency action--as opposed to plain old lawsuits--we have a great deal of excitement and moral fervor that on close examination turns into... hope that there is a more constructive solution out there. Here's some more detail on this assessment:

A) One element is that the CCIA is claiming to represent consumers-and as an economic matter that makes sense for them, sort of, on the theory people might be scared to make full use of their gizmos--but as a legal matter it does not. B) Another element is the rights being violated... Normally a free speech claim involves the government censoring someone, and sports leagues aren't the government. Therefore the argument here has to be stacked on top of a misrepresentation claim, a more typical claim against private actors.

But this allegation of misrepresentation raises some puzzles of its own.

* The audience for sports programming is often not the "consumer"-rather, the "consumer" is the distributor who pays for the right to broadcast the programming. The end viewer is a beneficiary of sorts... or one might just as well view the "product" being offered by the distributor in exchange for the broadcast rights as the viewer's eyeballs! So the "consumers" in the complaint aren't the consumer in the ordinary sense. And thus this isn't misrepresentation in the ordinary sense, when the consumer is tricked into acting or not acting on the basis of misinformation related to the transaction.

* Especially when the public is not a consumer in the ordinary sense, misrepresentation claims themselves raise free speech issues. To what extent can the government regulate exactly how businesses communicate with the public? If a salesman tells you that a blender is "top of the line?," you are expected to know that that sort of thing is meaningless, not binding in any way. We're expected to understand that psychics are for "entertainment purposes only" when in fact many are pretty serious con artists. Suppose an advocate tells you that all copyright law is unconstitutional, because it violates freedom of speech. If the case law disagrees with him is he engaged in misrepresentation? Especially since the sports leagues here aren't selling anything to the viewers in question, are they arguably acting as advocates if not educators?

One wouldn't expect this complaint to go much of anywhere as a legal matter. The meat of it is the sense that content owners are sometimes very conservative in their warnings, because they are compensating for a lack of even enforcement in other areas. I hope that the CCIA and audiences will ultimately help address this root problem; it's in everyone's interest that they do so, because we all want content to continue to be made available.