Monday, January 16, 2006

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Major league baseball has some bad, bad lawyers

The Associated Press reports that Major League Baseball is about to get into a legal war with fantasy baseball:

A company that runs sports fantasy leagues is asking a federal court to decide whether major leaguers' batting averages and home run counts are historical facts that can be used freely or property that can be sold.

In a lawsuit that could affect the pastime of an estimated 16 million people, CBC Distribution and Marketing wants the judge to stop Major League Baseball from requiring a license to use the statistics.

The company claims baseball statistics become historical facts as soon as the game is over, so it shouldn't have to pay for the right to use them....

CBC, which has run the CDM Fantasy Sports leagues since 1992, sued baseball last year after it took over the rights to the statistics and profiles from the Major League Baseball Players Association and declined to grant the company a new license.

Before the shift, CBC had been paying the players' association 9 percent of gross royalties. But in January 2005, Major League Baseball announced a $50 million agreement with the players' association giving baseball exclusive rights to license statistics....

Major League Baseball has claimed that intellectual property law makes it illegal for fantasy league operators to "commercially exploit the identities and statistical profiles" of big league players....

Ben Clark, a St. Louis attorney who specializes in intellectual property rights, said a win by Major League Baseball could "send a shudder through the entire fantasy industry," he said.

On the other hand, he said, it stands to lose the rights to any royalties for use of statistics.

"You just wonder whether it's a fight Major League Baseball wants to have," he said.

I find it hard to believe that MLB could win this in court -- and the PR backlash from going after fantasy baseball operators isn't going to win them any plaudits either.

Over at Baseball Musings, David Pinto has some useful links, including this nugget of information that appears to completely undercut MLB's case:

IP lawyer Kent Goss is quoted as citing an interesting 2001 case in which MLB themselves claimed that player names and statistics were (as far as I can interpret) both in the public domain and free for others to profit from, and the California Court of Appeal upheld MLB's right to use the names and stats of historical players. "A group of former players sued MLB for printing their names and stats in game programs, claiming their rights to publicity were violated," Goss said. "But the court held that they were historical facts, part of baseball history, and MLB had a right to use them. Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400 (2001)."
In other words, five years ago MLB was making the opposite argument of what it's saying now.

This leads me to a question I can't answer -- what on earth prompted baseball to adopt such a hard-line position on an issue it knows it probably can't win in the courts?

posted by Dan on 01.16.06 at 09:47 AM


I blogged about this story too. What I don't understand is that anyone who wants statistics on ballplayers can just go to and look at them. Even better, you can download the dataset in MySQL format and build your own db.

More at my blog, here.

posted by: Dave on 01.16.06 at 09:47 AM [permalink]

Some commentary on this suggest it's really about the use of team names and official player photos. The stats got thrown into the complaint with the kitchen sink.

posted by: Dylan on 01.16.06 at 09:47 AM [permalink]

That should be team logos, not names.

posted by: Dylan on 01.16.06 at 09:47 AM [permalink]

I'm guessing they will differentiate based on contemporary stats (useful for fantasy leagues) versus historical ones (not so useful). They probably want protection for just the current year which might allow the distinction.

posted by: John Jenkins on 01.16.06 at 09:47 AM [permalink]

This may not be about fantasy baseball, it may be about videogaming or something else. You can't fully protect your intelectual property by defending it from only certain uses.

Of couse, a court might ultimately distinguish between fantasy baseball and other uses of MLB information. This would free MLB to fully support fantasy baseball while not losing the right to protect the information for other uses.

posted by: PD Shaw on 01.16.06 at 09:47 AM [permalink]

MLB is run by morons who protect drug abusers.

They need a real Commisioner and some owners with IQs higher than 50.

Thank God for the NFL.

Go Steelers!!!

posted by: save_the_rustbelt on 01.16.06 at 09:47 AM [permalink]

This will be about logos and other copyright and trademark issues, not stats. Otherwise newspapers would need to pay a fee to publish stats in their stories which they do not.

posted by: pp on 01.16.06 at 09:47 AM [permalink]

I seem to remember this story from the begining of last season as we got our departmental fantasy league up and running....
I also don't see how baseball can win here-- all the papers publish a box score of every game, which contains all the relevant fantasy stats, and that info is in the public domain.
Otherwise, how would baseball get any coverage?

I do know that Bonds had some sort of special status in all of this-- in a few fantasy games he was listed as SF-OF or something like that, by position and not by name or image.

It won't kill fantasy though-- it all started well before the computer age, back when someone used to go compile all the stats by hand from the daily box scores in the paper.
Its a great way to learn math when you are young!

posted by: Peter on 01.16.06 at 09:47 AM [permalink]

Bonds' special position is that he has excluded himself from the marketing agreements that the players associations make on the players' behalf.

He separately negotiates his own fees for baseball cards, using his likeness, etc.

posted by: Rick Latshaw on 01.16.06 at 09:47 AM [permalink]

I am not a lawyer but I would argue that since Major League's teams sell scorecards at games they are facilitating and encouraging production of an independent statistical account of the game.
If I scored the game with my very own pencil using that form I would argue that I hold the rights to those statistics and could transfer them to anyone else at my discretion.

posted by: art hackett on 01.16.06 at 09:47 AM [permalink]

i'm sorry, but doesn't this sort of (semi-)maniacial fanbase-following of any major sport INCREASE its popularity? sure, fantasy geeks (myself included, fantasy FOOTBALL that is; i've been meaning to take the jump into F-BB, but now i'm not sure) can indeed care more about players on their virtual teams than the real teams they play for, but it's quite obvious to say that without the actual league, there would not be anywhere near this level of fantasy following. for instance, there are some very good SABR-inspired computer games and leagues one can join but many of these games do not have the oh-so-precious MLB license to import REAL stats. what i'm saying is that the REALITY of the sport matters a great deal, even (perhaps especially) for FANTASY fans.

bud selig obviously doesn't get it. if he did, he may be wary of alienating a growing segment of baseball's fanbase (existent and potential) that one day may not care for the actuality of statistical data. unfortunately, i'm still one of those 'traditional' fans who opt for simulations based on actual performance. we're a dying breed.

posted by: pete on 01.16.06 at 09:47 AM [permalink]

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