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pedro
01-15-2006, 07:16 PM
Fantasy league company sues for free rights to batting averages

ST. LOUIS, Missouri (AP) -- 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 says 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.

Working mostly over the Internet, CBC and its hundreds of competitors provide player profiles and process reams of daily data for fans who pretend to be team owners, drafting players for imaginary squads and using statistics to determine a winner at the season's end.

While some leagues are just for fun, others award large cash prizes, and operating them has become a multimillion-dollar industry.

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. But in January 2005, Major League Baseball announced a $50 million agreement with the players' association giving baseball exclusive rights to license statistics.

Despite being turned down for the new license, CBC has continued to operate leagues during the legal dispute.

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.

Jim Gallagher, a spokesman for Major League Baseball Advanced Media, baseball's Internet arm, declined comment on the lawsuit, scheduled for a hearing this summer in U.S. District Court in St. Louis, Missouri.

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.

pedro
01-15-2006, 07:17 PM
FWIW, I think stats are history and not property.

westofyou
01-15-2006, 07:23 PM
FWIW, I think stats are history and not property.
I think they're stupid and are misleading, plus about "10" of you on this board spend too much time thinking about them.

BCubb2003
01-15-2006, 08:09 PM
You can have the batting averages for free but the OPS will cost you extra.

IslandRed
01-15-2006, 09:23 PM
I'm surprised this is still not a settled issue in baseball. The NBA and various stat companies fought about this in court several years ago, although the argument there was over real-time stats. While I'm generally of the stats-as-history mind, real-time is a different matter, as that can amount to a de facto broadcast (and undercut the ability of the teams/leagues to sell broadcast rights). But trying to preserve those rights in perpetuity, as baseball seems to be trying to do, is too far in the other direction.

RedsBaron
01-15-2006, 09:26 PM
Major league baseball's greed evidently knows no limits.

KronoRed
01-15-2006, 09:58 PM
You have to be kidding me..stats are property??

What's next? Will you have to pay a fee if you mention them? :bang:

GAC
01-15-2006, 10:09 PM
Major league baseball's greed evidently knows no limits.

Ya got that right! I'm waiting for them to start trying to "muscle in" on the action, and the money to be made, in Little League around this country because team's uniforms and names are modelled after ML teams, and a kid has Bond's number on his jersey.

KronoRed
01-15-2006, 10:10 PM
Marty "Well Lopez hit 3...*kick from the lawyer present*..Ahem..he hit pretty good last year"


;)

Ron Madden
01-15-2006, 10:29 PM
We can see the Police report of Ryan Freels arrest for free
but they want us to pay to see his stats?

That's messed up!

Redsland
01-15-2006, 10:32 PM
You can have the batting averages for free but the OPS will cost you extra.
:laugh:

marcshoe
01-15-2006, 10:37 PM
You can have the batting averages for free but the OPS will cost you extra.

That's fine, as long as on-base percentage and slugging are also free. :)

cincinnati chili
01-15-2006, 10:37 PM
I made a pretty lengthy post on this topic at David Pinto's blog (baseballmusings.com), so for simplicity's sake, I'll copy and paste portions of that here:

I'm a law student in Boston. I discussed this case with my Intellectual Property professor, and was surprised to hear that he believes MLB (along with their strangebedfellow in this case, the MLBPA) is going to win.

While I'm no fan of the theory of "right to publicity," it is widely recognized by US Courts. Example: it would probably be illegal for me to sell T shirts that said "Tiger Woods" with a bullet point list of his championships. The rationale is that the athlete has created his personal profile through hard work, and that he should be rewarded for that hard work by having monopoly power over merchandise containing his personal profile. (Again, I don't like this holding in the law... but it's the law).

If MLB/MLBPA loses this case, then I would imagine Strat-o-Matic could stop paying royalties to the player's association. Think about it: Strat doesn't use player photos (that I know of), it merely uses "statistical profiles" associated with a player's name. Strat has been paying for the right to do this for years. The same is true of some "text-baseed" video games, where no player images or likenesses appear in the game.

MLB/MLBPA are not arguing that they own the statistics. They are arguing that each player has the sole right to exploit things that are associated with his person. But the "players" have assigned all of their rights to MLBPA, and MLBPA temporarily assigned all "fantasy" rights to MLB. So the MLB is arguing that the commissioner's office (for now) has the right to pick and choose who gets a fantasy license and how much it should cost.

Quick legal background for the lawyers: MLB was CBC's target in the declaratory action. MLB then counterclaimed. MLBPA moved to join as an intervenor party (which was allowed).

In short, I would love for MLB to lose this case, because it would keep fantasy games cheaper. It would also likely reduce barriers to entry in the video game market. If MLB wins (and prevails in subsequent appeals), it will have a legal mandate to become a classic monopolist in the fantasy market - decreasing the supply of games, yet raising prices.

But unfortunately, this is a close call.

Prediction: regardless of whoever wins at the district court level, the other party will appeal, CBC will run out of money, the case will settle, and will be vacated.

[later - someone asked how my professor could possibly think that MLB would win, in light of the "Motorola" case]

The NBA/Motorola case was about control of "real time" updates, not about a player's right to publicity.

IIRC, the NBA's theory was that it had a property right to the descriptions and accounts of the game. The NBA tried to make the claim that the Motorola updates were analagous to some guy sitting in the stands and broadcasting the games, without a license. (There actually was a case years ago where some dude used a telescope to look into Forbes Field in Pittsburgh and made his own "pirate" Pirate broacasts). The court didn't buy the analogy. It held that these updates were "news" items, and that people wouldn't choose these real-time updates as a surrogate for watching the game.

The Motorola case would be more analogous to this case if the PLAYERS had sued.

There is another case called Morris v. PGA tour, also about real-time updates. The tour could not stop "hole reporters" from providing real-time updates via pagers.

Also: The Motorola case was a 2nd circuit decision. It is not binding within the 8th Circuit where the CBC case will be heard (in USDC in St. Louis). But it's true that most courts have followed the Motorola decision.

I agree with those of you who think that MLB is splitting hairs. But, I reiterate that Strat-o-Matic has been paying licensing fees for years for the right to use a player's statistical profile and stick his name next to it. PC simulation games like "Out of the Park" and "Baseball Mogul" use false names, because they fear lawsuits. If MLB loses, there will be a sea change in these markets (for the better, IMO).

MrCinatit
01-15-2006, 11:43 PM
yeah, i don't see any way this can bite them in the butt.
heck, i can almost picture Selig, desperate for money, auctioning off baseball's most beloved stats on an eBay 99 cent auction.

RFS62
01-16-2006, 12:28 AM
They've been talking about this for a while on XM. MLB wants to control all fantasy baseball outlets and a piece of every pie.

BCubb2003
01-16-2006, 01:31 AM
That's fine, as long as on-base percentage and slugging are also free. :)

OBP and slugging are a dollar each or two for $1.79.

gonelong
01-16-2006, 10:21 AM
When MLB announces the attendance for the Reds opening day game this year, I'll be suing them. My attendace to the game created that statistic and therefore I own it. (I called dibs)

GL

cincinnati chili
01-16-2006, 10:30 AM
Again, this isn't about charging ESPN or the Cincinnati enquirer for publishing stats. It's about charging TQStats for the right to charge people for the right to "purchase" Adam Dunn and the statistical profile that comes with him.

Also, if MLB loses, it will certainly effect Strat-o-Matic and other text-based games that have paid licensing fees for years to sell a bunch of cards with nothing on the cards except a player's name and a bunch of numbers.

gonelong
01-16-2006, 10:42 AM
Ah, I was just poking fun at MLB. As a player I would want to control those items as well.

GL

cincinnati chili
01-16-2006, 10:52 AM
Ah, I was just poking fun at MLB. As a player I would want to control those items as well.

GL

I gotcha. I wasn't just directing at you. And again, I hope that MLB will use. I just think it's going to be a close call.

traderumor
01-16-2006, 11:03 AM
Am I understanding that currently Commercial Fantasy Leagues have to pay a licensing fee to MLB? If that's so, the only "loss" to the consumer is the status quo.

cincinnati chili
01-16-2006, 12:26 PM
Am I understanding that currently Commercial Fantasy Leagues have to pay a licensing fee to MLB? If that's so, the only "loss" to the consumer is the status quo.

It's not that simple.

IIRC, CBC, the plaintiff in this case, had always paid a licensing fee of 9% of profits to the players' association. Since the law was a little bit hazy, major fantasy sports companies always just forked over the dough, not wanting to compete in a legal battle with a union of millionaires.

A couple years back, the players' association made a deal with MLB. The association agreed to assign all of its "fantasy" rights to MLB for a limited period of time (5 years maybe). MLB wanted to expand its fantasy games (beat the streak, etc), and thought it would be better if it could restrict the supply of fantasy games.

After the 2004 season, MLB started sending out "cease and desist" letters to many of the fantasy sites.

So to answer your question, MLB might try to make it so that there's no Yahoo leagues, no Sandbox leagues, no CDM leagues, etc. MLB will certainly try to bring all commercial fantasy leagues under its umbrella.

Less supply. Higher price. Bad for consumer.

Trust me, everyone here who plays in fantasy leagues (except for people who add up the stats themselves) should want MLB to lose.

Heath
01-16-2006, 05:30 PM
Every time there is an issue for this sort of thing in any professional league,
does any ever notice how the NFL dodges all this?

Pete Rozelle. Paul Tagilabue. WTG.

So, baseballreference.com & my Baseball Encyclopedias are going to be moot after this, correct?

Unassisted
01-16-2006, 05:50 PM
So, baseballreference.com & my Baseball Encyclopedias are going to be moot after this, correct?I think it's a fair assumption that those sites are paying the license fees. Otherwise, MLB would have sicced its legal eagles upon them and smited them with a lawsuit.

If anything, those sites are probably hoping that the "property" side wins, so that their competition will remain minimal. If the other side wins, look for a gold rush, as every link huckster in the land scurries to put up a baseball stats site that's chock full of ads.

BCubb2003
01-16-2006, 06:20 PM
The Game Thread would be in jeopardy, if it actually talked about the game.

cincinnati chili
01-16-2006, 07:31 PM
So, baseballreference.com & my Baseball Encyclopedias are going to be moot after this, correct?

Incorrect. I know it's complicated, but I intended for my summary above to draw the distinction.

Baseball-reference does not pay licensing fees. Unless it had copy/pasted its data from another source, then it has not infringed an original work of authorship.

Total baseball MIGHT pay some sort of licensing fees, but only for the use of "official" encyclopedia, the league logo etc.

Anyone here is free to start his/her own Baseball Encyclopedia, provided they don't infringe another work of authorship (in non-legalese: don't arrange your pages substantially the same way as 'Total Baseball,' 'Big Blue,' etc).

cincinnati chili
01-16-2006, 07:32 PM
The Game Thread would be in jeopardy, if it actually talked about the game.

Incorrect, provided that the courts held the same as NBA v. Motorola.

cincinnati chili
01-16-2006, 07:36 PM
Every time there is an issue for this sort of thing in any professional league,
does any ever notice how the NFL dodges all this?




Remember that the players unions typically control the players' rights to publicity. In this unusual situation, the Baseball Players' union assigned the players "fantasy rights" to MLB for a limited number of years.

CBC and other major fantasy sites probably do pay a minimial fee to the players' unions for the right to use the players' statistical profiles.

This only became an issue because MLB decided it wanted to put the squeeze on fantasy sites so that it could jack up the licensing fees and PROBABLY ultimately bring almost all online fantasy games under its umbrella (Beat the streak, and all those silly games).

BCubb2003
01-16-2006, 08:10 PM
Incorrect, provided that the courts held the same as NBA v. Motorola.


I hear you. Just trying to be funny. International News Service vs. The Associated Press says you have to be making money at something you didn't collect yourself that threatens the other party's core business, and that's not the case with the fantasy leagues.

KronoRed
01-16-2006, 09:59 PM
The Game Thread would be in jeopardy, if it actually talked about the game.
We'd have to talk in code ;)

Big Klu
01-16-2006, 10:54 PM
When MLB announces the attendance for the Reds opening day game this year, I'll be suing them. My attendace to the game created that statistic and therefore I own it. (I called dibs)

GL

Smells like a class-action suit!

BoydsOfSummer
01-17-2006, 12:39 AM
If they take away my Diamond-Mind, I'll blow something up.:explode:

KronoRed
01-17-2006, 04:31 AM
If they take away my Diamond-Mind, I'll blow something up.:explode:
Same for OOTP.

Riot time.

Caveat Emperor
01-17-2006, 06:01 AM
Incorrect. I know it's complicated, but I intended for my summary above to draw the distinction.

Baseball-reference does not pay licensing fees. Unless it had copy/pasted its data from another source, then it has not infringed an original work of authorship.

Total baseball MIGHT pay some sort of licensing fees, but only for the use of "official" encyclopedia, the league logo etc.

Anyone here is free to start his/her own Baseball Encyclopedia, provided they don't infringe another work of authorship (in non-legalese: don't arrange your pages substantially the same way as 'Total Baseball,' 'Big Blue,' etc).

So, I follow the argument you (and your professor) are making up to this point, but you lose me right here.

Basically the idea is that baseball reference materials do not have to pay a licensing fee due to the fact that they are producing a document in which they have personally compiled all of the statistics themselves. The underlying principle being that they (theoretically) added up all of the at-bats a player had by looking at his box scores, added up all of his hits by looking at the box scores, and computed his batting average for themselves as opposed to pulling the number off of MLB.com or some other website. I don't see the distinction between an encyclopedia producing a listing of all statistics through their own independent research and a fantasy league from keeping track of said statistics through it's own independent research and utilizing them for their games.

Also, isn't there a lurking issue of public domain here? The information which MLB contends is the "property" of the individual players is held out to the public for consumption from a countless number of sources -- from national sources such as ESPN.com to more local soruces such as the Cincinnati Enquirer. This type of information is freely accessible to any number of people and utilized on daily basis in multiple sources. I'd think that would render any claim of "right" over the numbers to be moot.

As an aside, my background is much more heavily slanted towards labor/employment law and criminal law, so I'm really out of my element on IP stuff.

cincinnati chili
01-17-2006, 11:16 PM
So, I follow the argument you (and your professor) are making up to this point, but you lose me right here.

Basically the idea is that baseball reference materials do not have to pay a licensing fee due to the fact that they are producing a document in which they have personally compiled all of the statistics themselves. The underlying principle being that they (theoretically) added up all of the at-bats a player had by looking at his box scores, added up all of his hits by looking at the box scores, and computed his batting average for themselves as opposed to pulling the number off of MLB.com or some other website. I don't see the distinction between an encyclopedia producing a listing of all statistics through their own independent research and a fantasy league from keeping track of said statistics through it's own independent research and utilizing them for their games.

Also, isn't there a lurking issue of public domain here? The information which MLB contends is the "property" of the individual players is held out to the public for consumption from a countless number of sources -- from national sources such as ESPN.com to more local soruces such as the Cincinnati Enquirer. This type of information is freely accessible to any number of people and utilized on daily basis in multiple sources. I'd think that would render any claim of "right" over the numbers to be moot.

As an aside, my background is much more heavily slanted towards labor/employment law and criminal law, so I'm really out of my element on IP stuff.

I totally understand the confusion, CE. I might lean on your knowledge of employment law (via pm) when I take it next fall.

After the Supreme Court's holding in "Feist," I think that the Copyright Act shapes up this way.

If a document is:

1. an original work of authorship AND
2. has a modicum of creativity

someone can get copyright protection, which includes complete control over derivative works.

So applying that to your second paragraph:

- Baseball-reference.com probably does not infringe "an original work of authorship" (element 1). For the most part, they just report baseball statistics (facts). But let's assume that they copy/pasted some code from another website. That would be a clear violation of the Copyright Act. Web pages are original works of authorship.

The primary theory at work in the CBC case is "right to publicity," rather than Copyright. However, it is possible (I hope) that the court will hold that giving players monopoly power over their statistical profiles (fantasy games, video games) would have the effect of giving the players a copyright over facts.

remdog
01-17-2006, 11:40 PM
OK. Question for CE and CC---you two are obviously law students or grads but I'm following this with some interest because it's always seemed to me to be a fine line between 'private intellect' and 'public domain'.

CE, you said: "The underlying principle being that they (theoretically) added up all of the at-bats a player had by looking at his box scores, added up all of his hits by looking at the box scores,...." My question is, who owns the box scores? Anyone, or are they public domain? I realize that you addressed this somewhat in the rest of your post butI can't quite get a definitave grip on it.

If someone 'owns' the box scores by dint of actually watching the game and keeping track of the stats that the game produces do they lose 'ownership' of that production by giving it freely to the public? By the same token, if any number of people watch the game and keep track of the stats independantly, do they all own the stats they, themselves produced or is the game a public 'event'.

I bring up the issue of a public event because of a story someone once told me: according to the story, in the early days of television, some stations would broadcast snippets of a football game as 'news' rather than entertainment. However, once the stations agreed to pay a fee to cover the game as entertainment rather than news, they were forever on the hook for broadcasting fees. Don't know if the story is true but I found it interesting.

Rem

cincinnati chili
01-18-2006, 12:25 AM
OK. Question for CE and CC---you two are obviously law students or grads but I'm following this with some interest because it's always seemed to me to be a fine line between 'private intellect' and 'public domain'.

CE, you said: "The underlying principle being that they (theoretically) added up all of the at-bats a player had by looking at his box scores, added up all of his hits by looking at the box scores,...." My question is, who owns the box scores? Anyone, or are they public domain? I realize that you addressed this somewhat in the rest of your post butI can't quite get a definitave grip on it.

If someone 'owns' the box scores by dint of actually watching the game and keeping track of the stats that the game produces do they lose 'ownership' of that production by giving it freely to the public? By the same token, if any number of people watch the game and keep track of the stats independantly, do they all own the stats they, themselves produced or is the game a public 'event'.

I bring up the issue of a public event because of a story someone once told me: according to the story, in the early days of television, some stations would broadcast snippets of a football game as 'news' rather than entertainment. However, once the stations agreed to pay a fee to cover the game as entertainment rather than news, they were forever on the hook for broadcasting fees. Don't know if the story is true but I found it interesting.

Rem

Rem:

I'll address your last paragraph first. Teams own the rights to broadcasts, including broadcast snippets. However, there are numerous working agreements in effect between television networks, e.g. ESPN allowing NBC to show highlights of each others' games. Occasionally, you'll see a special event (like a prizefight) where a network will not license highlights to other networks --- you'll just get to see still photos of a boxing glove connecting with Mike Tyson's face.

There's a famous case that decided this. I don't remember the name of the case, but it happened at Forbes Field in Pittsburgh. Somebody used a high-powered telescope (from outside the stadium) and made his own broadcast of Pirates' games, competing with the team's broadcast. The court said he couldn't do that, and that teams have had exclusive rights to broadcasts ever somce/

In the NBA v. Motorola case (earlier in this thread), I'm sure that the NBA tried to rely on this case. But the court felt that real-time-updates were more "news" than "broadcast" and let Motorola give the pager updates.

As for box scores... unless someone arranged box scores in a particularly unique and creative way, there is no way that box scores could be protected under US copyright laws. Even if you spent 10 years researching every pro. game ever played for the last 100 years, you're probably out of luck in the U.S. Since the "Feist" case (where a guy put forth a lot of effort merging about 30 different phone books into one --- he lost his when he sued someone for infringement, since phonebooks lack requisite creative arrangement), US courts cannot rely on "sweat of the brow" alone to recognize a copyright.

European courts might see it differently. It's not an area I know at all, but I'm told that foreign courts are more likely to recognize EFFORT ("sweat of the brow")in the assembling of facts, and might find for the plaintiff's in borderline cases.

Cyclone792
01-18-2006, 12:33 AM
Same for OOTP.

Riot time.

Markus does not use real player names in his release of OOTP so there's no worries. He releases the game with a fictional league set as the default; no real player names anywhere. Then guys such as Mike (Halofan, whom I know, btw) create real player roster sets and release them to the community.

We're safe with OOTP :thumbup:

Redsland
01-18-2006, 12:42 AM
In an unrelated matter, my "statistics" are for sale at hotredsfans.com.

:eek:

cincinnati chili
01-18-2006, 12:45 AM
Markus does not use real player names in his release of OOTP so there's no worries. He releases the game with a fictional league set as the default; no real player names anywhere. Then guys such as Mike (Halofan, whom I know, btw) create real player roster sets and release them to the community.

We're safe with OOTP :thumbup:

And I'm of the opinion that if MLB loses this case, it would be very tough for them to prevent either Markus or the Strat-o-Matic guys from FREELY using real player names.

KronoRed
01-18-2006, 12:47 AM
We're safe with OOTP :thumbup:
I know little about the law but my thinking was the game does come with real player stats, off names, but real stats..I was worried even that would be outlawed.

Cyclone792
01-18-2006, 01:01 AM
I know little about the law but my thinking was the game does come with real player stats, off names, but real stats..I was worried even that would be outlawed.

If worst comes to worst, Markus would simply release a 100 percent pure fictional league ... fictional players, fictional stats for those players, fictional teams, fictional parks ... everything fictional. :D

I don't think that'd be much of an issue ... I've never met one person who actually uses the default league that comes with the game. It's either their own unique fictional league, the historical route or downloading a real player roster set from someone.

No worries still ... we're good with our OOTP! :thumbup:

Cyclone792
01-18-2006, 01:04 AM
And I'm of the opinion that if MLB loses this case, it would be very tough for them to prevent either Markus or the Strat-o-Matic guys from FREELY using real player names.

Sounds like another reason to tack onto the laundry list for wanting MLB to lose. :beerme:

KronoRed
01-18-2006, 01:16 AM
Sounds like another reason to tack onto the laundry list for wanting MLB to lose. :beerme:
Agreed. :devil:

Not that I don't like Bob "Adam Dunn" Rogers out in LF at "Cincinnati Park" ;)

BCubb2003
01-18-2006, 02:45 AM
The fantasy baseball league that Jack Kerouac created when he was 12 years old is in the New York Public Library. We might have to give that a try.