Baseball statistics: history or property?

[Big Klu]

Originally Posted by gonelong

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]

If they take away my Diamond-Mind, I'll blow something up.

[KronoRed]

Originally Posted by BoydsOfSummer

If they take away my Diamond-Mind, I'll blow something up.

Same for OOTP.

Riot time.

[Caveat Emperor]

Originally Posted by cincinnati chili

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]

Originally Posted by Caveat Emperor

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]

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]

Originally Posted by remdog

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]

Originally Posted by KronoRed

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

[Redsland]

In an unrelated matter, my "statistics" are for sale at hotredsfans.com.

[cincinnati chili]

Originally Posted by Cyclone792

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

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]

Originally Posted by Cyclone792

We're safe with OOTP

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]

Originally Posted by KronoRed

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.

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!

[Cyclone792]

Originally Posted by cincinnati chili

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.

[KronoRed]

Originally Posted by Cyclone792

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

Agreed.

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

[BCubb2003]

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.