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That’s the question asked by Kal Raustiala and Chris Sprigman in a guest post at the Freakonomics blog.  Given the distinct advantage an offensive or defensive strategy confers on a team, why hasn’t there been a serious attempt to copyright these innovations so that other teams cannot use them?

The first question, of course, is whether an offensive or defensive system could be subject to copyright.  The authors say it’s plausible:

Indeed, in the 1980s, James R. Smith applied for a copyright on his “I-bone” offensive formation (he claimed that the formation was equivalent to choreography and therefore copyrightable).  We can find no record showing that the U.S. Copyright Office granted registration (although they did grant a copyright to a book describing the I-bone).  Patent protection extends to new and useful “systems,” and a well-developed football offense might be characterized this way.  It might also be characterized as a “method of doing business” — a category of inventions which are also patentable (with some restrictions) under U.S. law.  So intellectual property law might conceivably step in, but it never has.

So if it is feasible, why hasn’t it been done?  The authors offer three reasons:

First, the stories of football innovation often involve coaches that are struggling to find a way to win with players of inferior talent.  Effective innovation may be the only way to level the playing field, at least temporarily.

Second, football coaches are incredibly short-term thinkers.  The rewards of winning are immense — one Super Bowl victory makes a career — and this means that they are focused on winning now, and less deterred by the prospect of losing their edge over the long term.  An innovation that gives any advantage — even a temporary one — is worth exploring.

Third, even though there are no protections against copying in the long term, there are practical barriers that prevent immediate copying and ensure a short period during which the innovator can’t be imitated.  Innovative plays and formations can be copied relatively quickly. What’s far less quick is the process of rebuilding a team to take advantage of the innovation.  Employing any complex formation requires players to be retrained.  Often, it requires a different type of player too — the spread offense favors smaller, speedier offensive players and places less emphasis on enormous offensive linemen. (i.e. first-mover advantage).

All three of these sound plausible, but my question is why are they focused on coaches?  Each coach develops their schemes while under the employ of a team.  They leverage team resources to develop the schemes, they test them at practice and during games using players, coaches, and equipment paid for by the team, etc.  Even if the coaches are focused on the short-term (although this varies based on the length of their contracts and where they are in those contracts), teams are more likely to focus on the long-term.  Teams build their roster based on the needs of the particular schemes developed by the coaching staff.  They then invest large sums of money over multiple years in players that fit those schemes.  It strikes me that a monopoly on that scheme for a period of time would be quite advantageous to those teams.

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