Arbitron Doesn't Mess Around
by John Garziglia
Arbitron vigorously protects its data. That is well-known. On May 23, 2013, Saga Communications, Inc. and its subsidiary Lakefront Communications LLC were named as defendants in a Delaware Federal district court lawsuit alleging unauthorized reproduction and distribution of Arbitron?s copyrighted audience estimates. As the lawsuit was filed just days ago, the defendants have not yet had a legal obligation to respond. Therefore, it does little good to speculate upon the truth of the claims or the eventual outcome of the lawsuit. The lawsuit could be settled without another public word about it, or it could play out in the courts for years to come.
The filing of a lawsuit against a radio broadcaster alleging improper use of copyrighted audience estimates is an opportune time to reflect upon the rights claimed by Arbitron, and the various ways that a radio station, and indeed industry observers such as the news media, can run afoul of Arbitron?s claims to its intellectual property.
A discussion of the legal area of copyright is not easy. A discussion of Arbitron?s claims to its data, however, involves little nuance. Basically, Arbitron claims the right to every part of its audience estimates.
Arbitron even goes so far as to restrict the news media from re-printing audience estimates, telling the news media that ?Arbitron conditionally provides, to newspapers and other publications that write about radio or other media, a nonexclusive, limited, revocable, and personal license to publish a limited, newsworthy amount of Arbitron copyrighted data ? limited to those radio stations that are current subscribers to Arbitron?, along with various other restrictions (for more, GO HERE).
For subscribing stations, Arbitron offers a three page summary of what may and may not be done with its audience estimates including the overall admonition to stations that they ?have an obligation to keep these data out of the hands of unauthorized stations. After all, why should a competing station get for free what you pay Arbitron for?? (for more, GO HERE).
For non-subscribing stations, and for that matter, for any non-subscribing industry professional, it is simple. If you or your employing entity is not a subscriber to Arbitron?s products, Arbitron pretty much claims the absolute right to keep you from using Arbitron?s audience estimates in any way.
There are two good reasons to take Arbitron?s broad and comprehensive claims to restrict the use of its audience estimates seriously. The first, while not strictly legal, is that Arbitron is a large entity with good lawyers. Picking an intellectual property fight over gray areas of copyright law with a large entity is usually not a good idea. Litigation costs can easily run into the hundreds of thousands of dollars, and there are few certain outcomes.
The second, more legally-oriented reason to take Arbitron?s claims seriously is that, in addition to actual damages and a variety of other remedies, Federal copyright law provides for statutory damages in many instances of up to $150,000 per work infringed. In the Saga lawsuit, Arbitron initially alleges that 33 works were infringed upon. Do the math.
If the factual allegations in Arbitron?s lawsuit are assumed as true (something yet to be proven), the broadcaster may believe that Arbitron, or applicable copyright law, only restricts nonsubscribers from the use of its audience estimates to activities related to selling commercial advertising to third parties. Arbitron, however, in its lawsuit takes the position that the use of its audience estimates by nonsubscribers even for strictly internal purposes such as programming decisions and awarding of employee bonuses for programming ratings victories, is a wrongful use of its intellectual property.
Whether or not the court will agree with Arbitron is yet to be seen. If Saga defends this lawsuit, we should learn more about Saga?s legal reasoning in subsequent court filings.
For now, this lawsuit is a reminder to our industry of the all-encompassing rights claimed by Arbitron to its audience estimates, the ownership of which is Arbitron?s primary product, and the risk of using audience estimates in any way that Arbitron demands a license to do so.
John F. Garziglia is a Communications Law Attorney with Womble Carlyle Sandridge & Rice in Washington, DC and can be reached at (202) 857-4455 or jgarziglia@wcsr.com.
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