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The Patriots, Belichick and Circumvention

Today, NFL Commissioner Roger Goodell fined New England Patriots head coach Bill Belichick the league maximum of $500,000 for having a staff member videotape the New York Jets’ defensive signals in violation of league rules.  The NFL further fined the Patriots $250,000 and confiscated a first round draft pick (assuming they make the playoffs, which they probably will).

Now people will begin debating the appropriateness of the penalties paid by Belichick and the Patriots.  One argument will be that deciphering signs is part of sports and perfectly legal, so Belichick’s objective was not a terrible thing.  And, if deciphering signs is ok, why make such a big deal of using a video camera to accomplish it?

There’s a curious parallel between this argument and one about circumvention of DRM in copyright.  Both the Patriots and some circumventers have a “legal” objective.  The Patriots want to decipher the opponent’s defensive signals, and some circumventers want to make fair use of a copyrighted work.  The only “offense” is using technology to accomplish otherwise legal ends.  So, if we think (as some do) that penalties for circumvention should be lenient or nonexistent when fair use is the purpose, shouldn’t the Patriots and Belichick get off with less severe punishment?

I admit this argument has some appeal, and it made me reconsider my initial reaction that the Patriots and Belichick got what they deserved.  However, there’s a difference between the two scenarios.  The Patriots and Belichick are not relatively innocent first time offenders.  The Packers caught them at it last year.  More important, this fall the NFL specifically reminded coaches not to do the very thing the Patriots did.  Thus, it seems that the NFL did not punish the Patriots and Belichick simply for breaking a rule.  Rather, the NFL punished them for thumbing their noses at the league’s authority to regulate competition.  It’s as if a circumventer had deliberately violated a preliminary injunction against circumvention.  A court’s severe response in such a situation would be for flouting the court’s authority, not simply the illegality of circumvention.

With this in mind, I think the league has treated the Patriots and Belichick quite fairly.  They have been taught that disobeying the commissioner is painful.  Although I might have suspended Belichick if I were the commissioner, I can understand that Goodell didn’t want to upset competitive balance on the field in such a direct way when the Patriots themselves did not actually alter a competitive outcome (they were caught in the first quarter and the videotape was confiscated, so they never got the benefits of their misbehavior).