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In a ruling on a trademark dispute, Judge Terence T. Evans of the 7th Circuit Court of Appeals this week digressed from the normal pattern of appellate opinions to tell a story. It was a story about baseball. By the time it was over, Judge Evans had encouraged thousands of readers to infringe on Major League Baseball's broadcast copyright.

Judge Evans, like so many others before him, had linked to a YouTube clip.

The case at hand involved a trademark troll's claims against a baseball bat manufacturer co-owned by George Brett, a hall-of-famer who played 21 seasons with the Kansas City Royals. Judge Evans, obviously a dedicated fan of the game, opened his opinion by gleefully recounting the events of the infamous "Pine Tar Incident," a moment in baseball history that also involved Brett and baseball bats.

(The Pine Tar Incident, for those readers who aren't baseball historians, started when an umpire revoked a game-winning, ninth-inning home run hit by Brett, on account of an excess of pine tar on his bat. Brett nearly tackled the umpire after the call, the bat was spirited away by members of the Royals team to prevent its examination, and the whole episode quickly became a part of baseball legend.)

After his description of the imbroglio, Judge Evans provided a link to a YouTube clip of the scene: seven minutes of pure broadcast footage showed the entire situation unfold. The clip almost certainly violated Major League Baseball's copyright - it contained several minutes of the broadcast, was not for review purposes, etc., so there was little chance of a fair use claim.

The clip had a surprisingly long life before it came down. It was still viewable a day and a half after the opinion's publication, but sometime after that, YouTube replaced the footage with the dreaded copyright violation notice.

It happens. It happens a lot. Only this time, it happened after the clip was publicized by a federal appellate judge who knew, or should have known, that the video infringed on MLB's copyright.

Judge Not, Lest Ye Be Judged

Besides fits of giggles from copyright and cyberlaw attorneys, the link raises a few serious questions. After all, this is a man who could, potentially, rule in the future that such behavior constitutes an inducement of infringement.

The law surrounding the linking to or embedding of infringing content is still murky, although the RIAA and MPAA are suing like crazy in order to clear it up. Under the Grokster decision, it's likely that there could be a valid claim for inducement if a website exists only to promote the infringement of copyright, but that decision refers to devices, not websites, so no one can predict with certainty how a court will rule on the issue.

Here, there probably wouldn't be a case against the judge, since the opinion was distributed as a legal document, not as an instrument for copyright infringement. Plus, judges enjoy a wide immunity for what they write in their opinions. Even if there was a legal argument for inducement, the judge would have no liability because of that judicial shield.

Still, it might appear a little unseemly for Judge Evans to rule on a website inducement case if he's ever on a panel considering one. It also opens up the possibility of the "you did it, why can't I?" argument from defendants, which no judge wants to address in open court.

The judge might have to excuse himself from sitting on any such panel, which would certainly make up the first instance of YouTube recusal in the history of the federal judiciary. But will it be the last?

Hopefully. The ephemeral nature of YouTube content makes it a poor historical record. Linking to YouTube clips in judicial opinions almost guarantees that legal scholars will have an incomplete idea of the cases they are reading, which could lead to more bad law than legal scholarship already produces.

Fortunately, Judge Evans' description of the Pine Tar Incident had nothing to do with the legal resolution of the case. (The trademark troll lost and had his mark stripped, by the way.) As it is, it's a little embarrassing for the judge, hilarious for fans of cyberlaw, and harmless gossip for IP attorneys to pass around the office.

Expect the 7th Circuit to put out guidelines for references to copyrighted sources online in the wake of this opinion.

An opinion, which we will now dub, for the annals of cyberlaw legend, "The YouTube Incident." ®

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