Boxed Scores

Julian Sanchez | January 16, 2006

One way to distinguish libertarians from conservatives—aside from the (open) affinity for drugs and weird sex—is that the latter are required by some bylaw of the movement to care about baseball. I don't, so I had to rely on a friend to forward me this interesting story about a dispute between Major League Baseball and a company that runs fantasy sports leagues over control of ballplayers' stats. The company kept running its fantasy baseball league after MLB declined to renew a license for the stats—now they're in a legal tussle over whether players' records are covered by intellectual property law.

I'd think this could have and should have been handled contractually: Insofar as MLB had de facto control of the initial database of stats, it seems like it should've been able to make it available to a third party under some explicit agreement stipulating that the third party's copy had to be destroyed after a year barring some extension. And if that wasn't done, there might be something to the claim that the names and identities of the players can't be commercially exploited without permission—I can't just write and sell a video game called "Derek Jeter Baseball." But the idea that the stats—factual records of what happened at a series of public events—are subject to individual ownership doesn't seem like it can possibly fly.

Comments

|1.16.06 @ 1:04PM|#

Those interested in intelectual property law are encouraged to begin study in this area with a seminal and controversial Supreme Court case from 1918:

http://cyber.law.harvard.edu/metaschool/fisher/linking/doctrine/ins.html

Matt Welch|1.16.06 @ 1:13PM|#

Some interesting discussion on this here:
http://www.baseballthinkfactory.org/files/newsstand/discussion/ap_fantasy_league_company_wants_free_stats/

thenewguy|1.16.06 @ 1:22PM|#

It's historical facts. You can't own the stats from last nights game anymore than American can own the hour/date/time of D-day.

kgsam|1.16.06 @ 1:26PM|#

That would be similar to concert promoters claiming inntellectual props over concert stats, such as attendance, take, venues, etc.

|1.16.06 @ 1:29PM|#

"You can't own the stats from last nights game anymore than American can own the hour/date/time of D-day."

We're working on a complaint against Spielberg for Saving Private Ryan right now.

Ed|1.16.06 @ 1:31PM|#

It all depends on whether the stats can be considered descriptions and accounts of the game because, as such, they cannot be used without expressed written consent.
Every baseball geek knows this.

|1.16.06 @ 1:33PM|#

One way to distinguish libertarians from conservatives�aside from the (open) affinity for drugs and weird sex�is that the latter are required by some bylaw of the movement to care about baseball.

Julian, are you suggesting you're a conservative?

Unclean!

Um, I care about baseball. And I align myself with the libertarians (on most, but not all points, including the snarky point of view that many libertarians adopt).

As asinine as the MLB's argument may be, I think they might have a point with all their "unauthorized accounts or descriptions of the game are prohibited" mumbo-jumbo and the fact that a ticket to a game only gets you the distinct privelege of sitting in a tiny seat and watching juiced guys hit little balls of horsehide and cork with wooden bats. I always interpreted that to be "telling your buddy about the game if he didn't go" is technically illegal but they just never came after you. Theoretically you could argue that the stats are part of those accounts and descriptions.

Then again...what happens when the broadcasters use their license to distribute said events and depictions via free TV, essentially out into "the public"? Once I've seen a game on TV I can't really unsee the homeruns and double plays and such. Am I not allowed to talk about it or use that information I've seen, especially if it was by accident (i.e. I'm not even an implied party to the "accounts and descriptions" agreement)?

Of course, the entertaining a-hole libertarian jerk argument is, with all the public financing of MLB ballparks, isn't the public subsidizing these stats through tax dollars and thus it's public domain? Now THAT would be funny.

|1.16.06 @ 1:44PM|#

Telling your buddy about the game is illegal ROFL. If they ever tried to enforce this they would be laughed out of court.

Companies claim things all the time that they can't enforce. On the other hand I found out recently that patents have effectively been extended by the Federal Circuit to cover laws of nature at this point, so I wouldn't be surprised by anything to do with intelectual property law these days.

To determine if something is protected you need to decide how it is protected ie Copyright, trademak, patent or Contract (also could be a trade secret but we can ignore that for now). For example the Derek Jeter Baseball game is trademark. Statistics would definitely have to fall under Copyright or Contract. Copyright covers particular expressions not facts, so a particular presentation of stats is copyrightable, the statistics themselves are not. So unless there was an explicit contract then MLB has no leg to stand on, and a court will happily knock out whatever they are standing on from under them.

|1.16.06 @ 1:46PM|#

Baseball stats, in and of themselves, are not private property; but someone has taken the time to collect all of this data, compile it, calculate different stats from it - this is what would seem to be protected. Anyone is free to keep their own stats, but if you want to use the stats that someone else took the time and effort to procure it would seem to make sense that the entity who did the procurring (sp?) has some claim to this.

|1.16.06 @ 1:53PM|#

As asinine as the MLB's argument may be, I think they might have a point with all their "unauthorized accounts or descriptions of the game are prohibited" mumbo-jumbo and the fact that a ticket to a game only gets you the distinct privelege of sitting in a tiny seat and watching juiced guys hit little balls of horsehide and cork with wooden bats. I always interpreted that to be "telling your buddy about the game if he didn't go" is technically illegal but they just never came after you. Theoretically you could argue that the stats are part of those accounts and descriptions.

rafuzo,
Isn't that the point of the lawsuit. MLB is saying that stats are unauthorized accounts of the game and that they should be illegal. I can say that I own everything that happens and all unauthorized accounts of my life are illegal without my express written consent. However, it doesn't mean it would last a day in court. For stats, any idiot can pick up a newspaper and see them all there for free. MLB is going to lose this one ... bad*.


* Especially thanks to the lost clout they got after dicking around w/ Congress re: steroids. Not to say I agree with Congress' witchhunt, but at least it gives MLB a tad less than uber favored status on Capitol Hill.

Warren|1.16.06 @ 2:02PM|#

Reason #367 to do away with copyright.

Yogi|1.16.06 @ 2:06PM|#

I have absolutely no idea why MLB would want to WIN this battle. This would absolutely KILL fantasy leagues all over the nation. These fantasy leagues increase interest in their product. They get people to watch games that have nothing to do with their hometown team and just create more of an interest in their product. These idiots are determined to kill this sport one way or another.

triticale|1.16.06 @ 2:10PM|#

My memories of the last games I watched constitute accounts or descriptions of the games. In order to avoid future possesion of any such I shall refrain from watching any more.

As I understand it, MLB has been exempt from anti-trust legislation based on being a "pastime" rather than a business. If so, expenses generated in pursuit of a pastime are not deductable, and MLB probably owes, with interest and penelties, something close to the Federal deficit.

Yogi|1.16.06 @ 2:10PM|#

Anyone is free to keep their own stats, but if you want to use the stats that someone else took the time and effort to procure it would seem to make sense that the entity who did the procurring (sp?) has some claim to this.

Yeah. Many leagues, no matter which sport, like to claim they have the *official* stats of the game to make sure they are accurate and fair for their customers. But that doesn't mean I couldn't start a company that compiles the stats by watching the game and then sell those to one of these companies. Their market share would be determined by how accurately and professionally they compiled the statistics.

|1.16.06 @ 2:13PM|#

Bart: Wow, you can do anything out here!
Homer: That's right. See that ship over there? [points to a ship with a large satellite dish on it] They're re-broadcasting Major League Baseball with implied oral consent, not express written consent -- or so the legend goes. (from snpp.com)

I am shocked - shocked - that it took ninety minutes for someone to post this quote.

|1.16.06 @ 2:15PM|#

"Baseball stats, in and of themselves, are not private property; but someone has taken the time to collect all of this data, compile it, calculate different stats from it - this is what would seem to be protected. Anyone is free to keep their own stats, but if you want to use the stats that someone else took the time and effort to procure it would seem to make sense that the entity who did the procurring (sp?) has some claim to this."

What amazes me is that it took that many comments for this common-sense obvious comment to get posted. I don't "own" the events of the Civil War, but if I publish an historical account of it, do I not have some claim to that accounting?

If MLB, or a company they contracted, were the ones to go through the trouble of compiling the statistics (no small task), then they certainly should have some claim to the compilation. Having claim to the compilation is different than having a claim to the actual stats themselves. If it weren't, then, well, one could make the similar argument that any and all works of non-fiction are "public domain", and thus, nobody can claim authorship of them.

|1.16.06 @ 2:29PM|#

Yeah. Many leagues, no matter which sport, like to claim they have the *official* stats of the game to make sure they are accurate and fair for their customers. But that doesn't mean I couldn't start a company that compiles the stats by watching the game and then sell those to one of these companies. Their market share would be determined by how accurately and professionally they compiled the statistics.

You are absolutely right, and there are already companies that compile their own stats and sell them to whoever is interested. One of such companies I dealt with previously is Stats, Inc., for example. They even tracked stats that the league (in my case, the NFL) didn't.

I worked on a product to assess various contract stipulations for NFL players, which were used for bonuses (such as number of yards or touchdowns per season). I did so for interested sports managers. One thing I found was that one of the most common contract elements, play time, was not even tracked by the league or the players' association. In fact, there are two widely different definitions of play time used by the managers. As such, I had to turn to a third party, a private sports tracking company, to obtain the statistics (which, in turn, turned to be useless, as the clubs and managers didn't use them and thus my output was inconsistent with the real world). Official statistics are sometimes inferior to other databases, so I see no reason why the fantasy league doesn't just dump MLB and goes with a private outfit.

Ed|1.16.06 @ 2:38PM|#

This one is pretty easy, actually. Stat geeks and fantasy sports league participants should be hanged with the entrails of sports-talk radio hosts. End of controversy.

|1.16.06 @ 2:51PM|#

And if that wasn't done, there might be something to the claim that the names and identities of the players can't be commercially exploited without permission-I can't just write and sell a video game called "Derek Jeter Baseball."

You're referring to a California law that most of the rest of the country doesn't have. There is nothing in federal intellectual property law barring you from "commercially exploiting" someone's name or identity.

There is a trademark issue with "Derek Jeter Baseball" because it could be confused with an official Derek Jeter product but nothing stopping you from using Derek Jeter's name in a nonconfusing way such as as a player name in your roster.

Yogi|1.16.06 @ 2:58PM|#

From what I've read, which is limited, about this case, is that MLB is not just fighting for its own compiled stats, its fighting for ALL compiled stats. If I'm wrong, then I might change my tune. It has a right to keep *official* stats and sell those, but it doesn't have a right to stop other people from keeping stats and selling those.

This is similar to video games. I haven't bought video games in years, but I remember some called their teams "Minnesota" or "Chicago" instead of the "Twins" and "Cubs". Also they had the player's number instead of their names. Some games had all the official names, but they paid royalties for them. However, both games had the previous season's stats for the correct player. I'm not sure if they paid for those, but I doubt it.

|1.16.06 @ 3:02PM|#

It's kind of odd. In Feist v. something Rural Telephone, Feist ripped of the other companies information. The court ruled that while the compilation was protected, the information was not. So, in short, I can't just run down to Kinko's and made duplicates, but I can take all the useful information as my own. Facts aren't copyrightable.

Yogi|1.16.06 @ 3:04PM|#

I wonder if the Quarterback Rating is copyrightable? Does anyone understand this?

|1.16.06 @ 3:22PM|#

"From what I've read, which is limited, about this case, is that MLB is not just fighting for its own compiled stats, its fighting for ALL compiled stats."

Well, if that is the case, then eff the MLB. Next thing ya know, the RIAA will be suing anyone who downloads the lyrics to songs. That is, if they aren't already.

|1.16.06 @ 3:23PM|#

MLB has been exempt from anti-trust legislation based on being a "pastime" rather than a business

I don't think so. As Justice "Johnny Wadd" Holmes put it in 1922, "[T]he fact that in order to give the exhibitions (games) the Leagues must induce free persons (players) to cross state lines and must arrange and pay for their doing so is not enough to change the character of the business...the transport is a mere incident, not the essential thing. That to which it is incident, the exhibition, although made for money would not be called trade of commerce in the commonly accepted use of those words?"

IANAL (although I really dig that acronym) but Holmes seems to be saying that since the game is played in a state, how the players got there is irrelevant. Since then the Supreme Court has found that just about everything falls under the Commerce Clause. I wonder what happed to "the transport is mere incident"?

digamma|1.16.06 @ 3:24PM|#

But the idea that the stats�factual records of what happened at a series of public events�are subject to individual ownership doesn't seem like it can possibly fly.

Neither does putting a kid in jail for writing DVD player software. It happened anyway.

|1.16.06 @ 3:30PM|#

This is similar to arguments I've had in the field of genealogy for years. Facts can't be copyrighted. Period. A particular form of presentation may be copyrightable, but only to the extent it contains unique creative expression by the presenter. That still doesn't protect the core facts. To the extent that a database contains just baseball statistics, I can't see any valid claim under copyright law. (At worst, you export the data through a filter into your own database format.) If the original database was provided under a license that included a noncompete clause or some such, there might be a contractual claim, but not a copyright claim.

Did you know you can't copyright recipes? A cookbook's copyright only protects the elements that constitute creative expression (the arrangement of recipes, photos, pithy comments, etc.) You could copy every recipe in Joy of Cooking verbatim, rearrange them, and publish them yourself. Vital statistics (births, marriages, deaths) also can't be copyrighted. Kudos to the guy who pages through 200 years of moldy town record books to compile a database of births, but while its use may be licensed, it can't be copyrighted.

|1.16.06 @ 3:37PM|#

Baseball stats, in and of themselves, are not private property; but someone has taken the time to collect all of this data, compile it, calculate different stats from it - this is what would seem to be protected.

Precisely wrong. It would be nice, but copyright rewards creative expression, not mere labor. Say up to 15 years ago, someone could abstract (summarize) and compile all the county birth records, self-publish a book, and sell it, because there was no other way for interested researchers to get the data, and no competing researcher would take the time to retype the data by hand. Then came scanners and OCR and the web, and all the old compilers found out that they had no protection against someone scanning and posting their data. Today I expect that the websites that thrive by selling access to government records do so on the basis of a license (contract).

Warren|1.16.06 @ 3:39PM|#

greg,

Re: your comment @ 2:51
You are wrong. Players names and likenesses are all protected IP. You may not use them for any commercial purpose without written blah blah blah trademarkcakes.

|1.16.06 @ 4:08PM|#

This just gets better and better! There is a very good article here.

Brief summary:
1) MLB sued Motorola for sending game updates as text messages and lost; the second circuit court of appeals ruling that the statistics are historical facts and can't be copyrighted.

2) MLB is now suing CBC under the doctrine of publicity, saying only it (MLB) should get to make money from its product. The right of publicity came into existence in 1953 when MLB sued Topps for making baseball cards without paying a license fee. In 1970, a suit by the players union established that the rights to the stats were owned by the players union.

3) But, in 1996, several former players sued MLB over the use of their names and stats in videos, etc. MLB used a first amendment defense, and won.

In other words, MLB wants CBC to abide by legal principles it sucessfully fought against!!!

In the words of Nelson Muntz, Ha Ha!

R C Dean|1.16.06 @ 4:14PM|#

MLB wants CBC to abide by legal principles it successfully fought against

Geez. Lawyers. Am I ever in the wrong business.

Oh, wait. . .

|1.16.06 @ 4:20PM|#

I made a misstatement above. MLB is not suing CBC (yet). MLB has sent threatening letters to CBC and some of its business partners, including USA Today, whose fantasy leagues are run by CBC, which have the potential to hurt CBC's business. CBC has filed suit seeking declaratory relief that its business does not violate copyright or right of publicity.

grylliade|1.16.06 @ 6:04PM|#

I wonder if the Quarterback Rating is copyrightable? Does anyone understand this?

I don't know if it's copyrighted (don't see how it could be, it being a formula), but the formula is:

100 * [5 * (Completion Percentage - 30) + 0.25 * (Yards per Attempt - 3) + 0.2 * Touchdown Percentage + 2.375 - (25 * Interception Percentage)] / 6

In each case, the percentage is the number compared to attempts, not completions.

grylliade|1.16.06 @ 6:05PM|#

Oh, and each term has a maximum value of 2.375 and a minimum value of zero. Hence the "perfect rating" of 158.3.

|1.16.06 @ 8:35PM|#

I always interpreted that to be "telling your buddy about the game if he didn't go" is technically illegal but they just never came after you.

The first rule of Major League Baseball is: You do not talk about Major League Baseball!

|1.16.06 @ 11:03PM|#

what sports do libertarians favor? soccer? soccer, or properly football fans barely keep stats compared to baseball standards, perhaps that is best...

|1.17.06 @ 11:50AM|#

spur

Rollerball baby!

Wild Pegasus|1.17.06 @ 2:15PM|#

There is a case almost exactly on point. The case is NBA v. Motorola, 105 F.3d 841 (2d Cir. 1997). Motorola was publishing statistics from NBA games to its pagers. The NBA sued for misappropriation and violation of copyright. The Second Circuit Court of Appeals ruled that Motorola violated neither.

Basically, by reporting what happened at the game, instead of using the form of expression, Motorola simply relied on facts, which cannot be copyrighted. Feist v. Rural Telephone Services, 499 U.S. 340 (1991). Final scores - which Motorola was reporting - are just as factual as triples and home runs - which CBC is using in this case.

Under misappropriation, the court laid out a five-part test for misappropriation of information:

(i) the plaintiff generates or collects information at some cost or expense

(ii) the value of the information is highly time-sensitive

(iii) the defendant's use of the information constitutes free-riding on the plaintiff's costly efforts to generate or collect it

(iv) the defendant's use of the information is in direct competition with a product or service offered by the plaintiff

(v) the ability of other parties to free-ride on the efforts of the plaintiff would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened

While some of the these were met by Motorola, not all or enough were met. Since the facts with baseball statistics are so similar, I imagine that baseball statistics will also not be considered a misappropriation.

- Josh

|1.17.06 @ 5:49PM|#

"It's historical facts. You can't own the stats from last nights game anymore than American can own the hour/date/time of D-day."

You would think, but the law has clearly been established to the contrary.

MLB could keep its own database of stats and distributes as it sees fit with its own terms of use. The problem of course is an outside third party with a modest budget and staff would have _zero_ problem replicating those stats on their own.

"Anyone is free to keep their own stats,"

The problem is, according to MLB, they are not. The only argument they could possibly have, legally, is that each game an "official scorer" who decides specifically what even has just happened. For example, a play where the batter winds up on third base could be scored a three-base error, a single and a two-base error, a double with the runner advancing on a throw to another base, or a triple. It is up to the official scorers discretion and on plays where there might be some doubt, that scorers decision is announced at the stadium. A similar argument can be made with regards to ball and strikes.

The problem is, of course, that extending intellectual property law this far is clearly slipperiest of slippery slopes. It basically puts all news in the hands of the people on whose property said news takes place.

|1.18.06 @ 3:28PM|#

lumlumlumlumlum... There. I just purged all knowledge of all MLB games I've ever viewed or listened to. Suddenly the Mariners seem to have a chance this year!