Claims in copyright cases (on both sides) sometimes have the air of fantasy about them. A recent dispute involving fantasy baseball leagues revives another fantasy: the assertion by sports leagues that they own copyright in the game statistics. The CDM Fantasy league, owned by the CBC Distribution and Marketing company, filed suit in the Eastern District of Missouri for a declaratory judgment that Major League Baseball's Advanced Media licensing arm cannot require it to take out a license to use game statistics on pain of copyright infringement. (Use of player images might raise right of publicity issues, but those rights are owned by the players, not by the leagues).
Kevin Heller's Tech Law Advisor website posted a blog on the issue last year, and CNN ran a story last week. One would have thought that the Second Circuit's NBA- Motorola decision had ended claims in game data, but the league's Jim Gallagher has been quoted as saying: "Player statistics are in the public domain. We've never disputed that. But if you're going to use the statistics in a game for profit, you need a license from us to do that. We own those statistics when they're used for commercial gain." That's an unusual view of the public domain to say the least; it is a view that the public domain ceases to exist once someone can figure out how to make money off it. And it is the lure of the money that CDM and other sports leagues are making that has brought the matter to a head.
Major League Baseball was successful in getting CDM to pay a license fee in the past, but according to CNN, the Players' Association (?) declined to enter into a new one, prompting the suit.
Because baseball hasn't yet done enough to alienate fans. Maybe another strike will do it...
ReplyDeleteThe sad part is that too many Americans would not understand the inherent contradiction in "sure it's public domain, but you need a license if you use it to make money."
ReplyDeleteIf only somebody were willing to take this to court. If it's possible to take color pictures of Beanie Babies for a pricing guide wihtout Copyright or Trademark issues, and possible to use the information in a phone book to create a rival phone book without copyright issues (because a copyright on arrangement doesn't go very far when the arrangement is alphabetical -- Feist), then it ought to be possible to use calculated numbers without copyright or trademark issues.
MLB's assertions are frivolous on their face, and if the judge has any brains, s/he will sanction them for opposing the suit. This pure facual data with no Feist arrangement issues, and MLB can't claim a copyright in the math used to calculate the statistics.
ReplyDeleteTurns out this case is no longer principally about copyright. Major League Baseball is now asserting right of publicity as its main theory for controlling the use of player names and statistics. Unfortunately, they have some favorable precedents to cite relating to games. Ironically, the chief precedent against them involves MLB's resisting a right of publicity claim brought by a retired player. See Gionfriddo v. MLB, 94 Cal.App.4th 400 (2001). The hypocracy is pretty remarkable!
ReplyDeleteFor those who are interested in the details of MLB's arguments, I've posted their recent summary judgment motion.
Thanks, Fred. The quotes in the reports were all over the (sand)lot
ReplyDeleteIn the CDM-MLBAM suit, I'm guessing plaintiff's counsel is busy working up analogies to other legitimate mixed commercial-journalistic endeavors wherein information contained in news articles feeds directly into games readers can play. One example would be the crossword puzzle which invites players to remember facts, including some drawn from recent news articles. Even the Governator of California wouldn't dare waste his time suing the NYT for the unauthorized appearance of his name in the Sunday crossword. I'm sure there are other instances of this kind of thing although none spring to mind (Sudoku is obviously inapposite). I emphasize this kind of analogy because my gut feeling tells me much of the judicial and juridicial decision-making will focus on the extent to which fantasy baseball players rely on news items posted on the game's Web site to govern their activities during the game. As a player I know that news is king. As is true on the battlefield, successful action sorely depends upon the acquisition of reliable information. Also, these fantasy games provide unique proprietary news content that one can pay for by paying the fee to play the game. Many readers pay the fee solely to obtain this news and do not play the "game" aspect of the service provided to them, like newspaper readers who skip the crossword.
ReplyDeleteVisit my Feres Doctrine blog at http://feresdoctrine.blogspot.com/
I guess what I really wanted to ask was what you thought were some good analogies to existing business which both use updated news to drive a closely-associated entertainment vehicle or game and enjoy freedom from license fees required by law.
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