Slashdot Mirror
Who Owns Baseball Statistics?
Class Act Dynamo writes "A sports fantasy league company has asked a federal court to decided whether baseball statistics belong in the public domain as history or are the property of major league baseball. Basically, they had been licensing the statistics for nine cents (US) per gross from the Major League Baseball Players Association. But MLB recently bought the rights to be the sole licensor and has refused to renew the license of the fantasy league company. From the article: '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.' What does the Slashdot community think? Shoud Barry Bonds' record 73 single season homeruns be in the public domain, or should I worry about having to pay royalties for the first part of this compound sentence?"
The article says NINE PERCENT OF GROSS (9%), while the blurb says NINE CENTS PER GROSS ($0.000625 each). Big difference there, unless the blurb got that figure from somewhere not in the article.
-- I prefer the term "karma escort."
Aren't there precedents with phonebooks and such that while a particular presentation of facts can be copyrighted, the facts themselves cannot? If that is the case, what is the MLB's lawyer thinking when he advised the go-ahead on the exclusive license and refusal to let fantasy league operators use the stats at a price? Or are they using an alternative definition of "Intellectual Property" that I am not aware of?
Are they seriously trying to argue that records that a player set, as well as numbers calculated from the tabulated performance of an athelete are not facts? I seriously fail to see why MLB thinks that it has any ground here. Though, to be fair, TFA didn't give much insight to the MLB's argument since
Engineers also speak PDE, only in a different dialect.
Facts and figures cannot themselves be protected by copyright (though the selection and presentation of them can, in a very limited form). That was established pretty unambiguously in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).
http://caselaw.lp.findlaw.com/scripts/getcase.pl?There may be some protection under the 'hot news' doctrine (International News Service v. Associated Press, 248 U.S. 215 (1918) http://caselaw.lp.findlaw.com/scripts/getcase.pl?c ourt=US&vol=248&invol=215 ), but I'm pretty sure modern courts would follow the reasoning of the 2nd Circuit (though not binding on non-2nd Circuit courts, unlike the Supreme Court opinions cited above, which are binding on all U.S. courts) in National Basketball Association v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997) http://www.law.cornell.edu/copyright/cases/105_F3d _841.htm ...
In summary, MLB can shove it, IM(ns)HO.
geek. lawyer.
It is my understanding that the relevant codes in the United States copyright laws formally define what is meant by creative work and what may be protected by copyright as any original creation of authorship in a tangible medium, although the law has been amended to include certain creative works, including computer software, which are not tangible in the traditional sense of the word. However, it would be quite a stretch to interpret the gathering of raw statistics, baseball statistics in this instance, as a creative work. If there is some other work created based upon these statistics, such as the formulation of a thesis or comparison, which is then written up in an article or paper and published then that would more readily, depending upon the content, fall under the definition of a creative work. In the practical sense it is perfectly reasonable for major league baseball, or indeed any other information broker, to gather and maintain a database of these statistics and charge whatever they wish for factual reports of this information. It seems to me that the statistics themselves, especially when presented outside the context of the game in which they originally occurred as part of broader comparisons, are not protected by copyright and therefore anyone who wants to sell such information is not impeded by copyright laws.
Note: I am not a lawyer and I do not mean for this to be taken as legal advice. It is merely the opinion of a private citizen and is presented as-is.
I recall that the NBA was suing companies that were sending out the scores of games over some wireless pager or cells phones. I guess this means that you can pay the money for the license to a seat, but forget about SMS'ing somene or telling anyone what the score was.
It's even worse in England. Here the League claim copyright on fixture lists: put your club's future games on a fan site and expect your ISP to receive a takedown notice.
This lawsuit is less about facts and more about players identities. A newspaper saying ballplayer X has a .241 batting average is legal because of freedom of the press and the fact that the newspaper is not using the identity of the player for commercial reasons. However, selling a product, such as baseball cards, with a picture and stats on the back is commercially using the players identity. This is a fine line I know.
b er-2005/argument_schwarz_novdec05.msp
The battle going on here is whether using the players names and stats in a fantasy game amounts to using it commercially or not. This article gives a really good summary:
http://www.legalaffairs.org/issues/November-Decem
The claim is presumably based on the principle that the fixtures are "created" and therefore subject to copyright. If you accept that, then why should other companies be able to profit from that act of creation without recognising the rights of the creators? I imagine that this would be particularly persuasive in the case of a pools company like Littlewoods, whose entire business model was based on the football fixtures list, yet didn't really put anything back into the game at all (at least not on a corporate level: in fact, members of the Moores family, who own Littlewoods, have been involved in the ownership of both Liverpool and Everton football clubs - Everton are the other big football club in Liverpool, for the benefit of non-UK readers - at various times).
Of course, the contrary point of view would be that compiling a fixture list is simply a cost of doing business for the football industry at large, and that any publication of fixture dates is a form of publicity for which the game should be grateful. This, however, would be inconsistent with the prevailing attitude in football, which is wring every last penny out of anyone they can by whatever means are available.
It may be that the status quo only holds up because no-one has challenged the 1959 case. After all, the sort of media outlet which publishes the entire fixture list for every club (i.e. national newspapers, football magazines and websites etc.) probably regards £6000 (the figure mentioned in the Guardian) as small potatoes compared to the aggravation of going to court. Legal action only ever seems to be threatened against these one-man-and-a-dog sort of operations.
The key difference between the situation here and what MLB is trying to do, though, is that baseball stats are matters of historical fact. Barry Bonds either did or did not hit 73 homers. Kerry Wood did or did not fan 20 Astros in a game. I don't see how that can be "owned".
In the UK we have an odd law around databases. In the US, traditionally data could not be copyrighted. In the UK, the first person to compile a specific database (think yellow pages) gets a monopoly on that kind of database for a number of years. It's a bit odd really...
As David Nieporent has pointed out in several other places, the dispute is not about the statistics themselves.
n d/discussion/ap_fantasy_league_company_wants_free_ stats/
For more details see his posts at:
http://www.baseballthinkfactory.org/files/newssta
Selective quotes:
This is not about the "stats." This is about MLB trademarks, and (more importantly), the MLBPA members' right of publicity
Nobody owns data, no matter who "gathers" it. That's Feist. "Sweat of the brow" -- that is, effort -- does not create a property interest in data. Now, one can have a copyright in a compilation of the data, but not in the data itself. (A compilation can include the particular arrangement or selection of data -- but again, the data itself is not protected. And there needs to be at least _some_ creativity in the arrangement -- putting data in alphabetical order, for instance, does not qualify.
MLB -- regardless of what the article says -- isn't talking about the statistics themselves. The primary issue here, as I said earlier, is right of publicity. You know how the local Toyota dealership puts your team's shortstop on their highway billboard? Well, the reason they do that is because he lets them. And the reason he does that is because the dealership pays him to do so. And the reason they're willing to pay him to do so is because he won't let them them otherwise, and they can't do it if he won't let them. Not because it's false -- even if it is, it would hardly be defamatory -- but because he has what's known as a "right of publicity." Roughly speaking, the right to control how his name and/or likeness is used for commercial purposes.
But there's an important point: the right of publicity doesn't trump news reporting. You can't stop the local newspaper from reporting that you've just been arrested by citing the right of publicity. And you can't stop the local newspaper from printing what happened in yesterday's game.