Turns Out Major League Baseball Doesn't Own Stats, After All

from the strikeout dept

Tue, Aug 8th 2006 6:50pm — Mike Masnick

A few years ago, the folks at Major League Baseball Advanced Media, better known as MLB.com, decided that despite all copyright law to the contrary, they actually owned the rights to factual information about baseball games. One thing that is consistent in copyright law is that you cannot copyright facts. However, MLB.com tried all sorts of contortions to suggest that they did, in fact, own the facts -- and no one else could use them. This came to a head earlier this year, when MLB.com refused to license official player names and stats to an online fantasy league. That league recognized that the players' names and stats are factual information and forged ahead with its service -- not paying baseball a dime. The company that provided the fantasy league, CBC, proactively filed a lawsuit asking for a declaratory judgment, knowing that MLB was likely to sue them. MLB's response was to claim that it wasn't really a copyright case at all, but about the right to publicity -- and the right to control how others use your likeness. It seems that this defense has failed.

Richard was kind enough to submit that the federal court hearing the case has sided with the fantasy league, saying they can continue to use the names and stats, since they're in the public domain and there is no violation of the right of publicity. The court noted that there is no indication that CBC is using the names and stats to suggest these players "endorse" or are associated with the fantasy league. Also, there's no commercial harm to the players. As the court notes, if anything, "this case actually enhances the marketability of the players." The court notes that, even if the right of publicity were violated, the First Amendment would protect the use of this data, because it is "historical fact," and just because CBC makes money on their service, it does not take away their First Amendment rights. Finally, the court also notes (once again) the point that facts are not copyrightable. In other words, MLB lost this case on every single argument. What will be interesting is to see the fallout from this decision. Will other fantasy leagues stop paying as well? Also, baseball (and other sports) have made a lucrative practice out of licensing such information to video game makers as well -- and it seems likely this ruling would apply to them as well. Of course, if MLB were smart, they would view this as a good thing. Getting more real info about real players out there in fantasy and video games should lead to more fans and more interest in the overall sport -- leading to many more opportunities to make money.

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28 Comments

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MLB.com Drone, 8 Aug 2006 @ 7:53pm

Good....and bad
I work for MLB.com, but didn't when this suit was started, so I completely sympathize with CBC. This is game changing. This whole adventure was a misguided attempt to take control over fantasy baseball with the end-goal of making it as popular as fantasy football, which has an audience an order of magnitude larger than America's previous pasttime. This is baseball at its worst, more a mentality likened to the RIAA than to a sport that owes its existence to the fans. If Web 2.0 has taught us anything, it's that not only does information demand to be free, it becomes more valuable when it is free. MLB's blinders here are embarassing.
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Anonymous Coward, 8 Aug 2006 @ 8:02pm

WTF??

why was ANYONE paying for this in the first place, it shouldnt cost THAT MUCH to goto court to prove that yes, facts are public domain.

if this is happening just now because ppl wer afraid of being sued, that is fucking terrible, it sohuldnt cost that much money to win an obious court case.

fucking a
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Anonymous Coward, 8 Aug 2006 @ 8:04pm

Remember that video games actually have the players in the game. And most (all if you're just talking about the last few years) include the likenesses of the players in question. I would think that you be against large corporations appropriating the likenesses of people for their own personal gain, but I guess not.
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MLB.com Drone, 8 Aug 2006 @ 8:24pm

I work for MLB.com, but didn't when this suit was started, so I completely sympathize with CBC. This is game changing. This whole adventure was a misguided attempt to take control over fantasy baseball with the end-goal of making it as popular as fantasy football, which has an audience an order of magnitude larger than America's previous pasttime. This is baseball at its worst, more a mentality likened to the RIAA than to a sport that owes its existence to the fans. If Web 2.0 has taught us anything, it's that not only does information demand to be free, it becomes more valuable when it is free. MLB's blinders here are embarassing.
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Tyshaun, 8 Aug 2006 @ 8:27pm

?
I can understand the statistics being part of public domain, but why aren't the players names protected, the same way actors names are (you have to get permission to use them for commercial gain)?
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Jeff, 8 Aug 2006 @ 8:52pm

Re: ?
Interesting decision...has anyone approached the NFL in a similar venue? I read last year the NFL was limiting the use of live game stats to 10 licenses with bidding to start at $100,000.

It is difficult to construct a real world parallel for an actor and an athlete. A comment above hints at the distinction: using an athlete's name to promote a fantasy site requires their permission. Posting their game stats next to their name is not an endorsement or "use" of their name – it is a reporting of historical facts. If their were a fantasy league for Hollywood actors, you could conceivable list gate receipts next to their names and gain the same use protection afforded fantasy baseball sites in the decision described above.
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Anonymous Coward, 8 Aug 2006 @ 9:16pm

By MLB's reasoning...
By MLB's reasoning, bookies should be paying them to allow bets on scores/stats from their league. I don't see MLB, NFL or any other sport suing the casinos in Vegas.
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Jack Sombra, 9 Aug 2006 @ 1:52am

Re: ?
"but why aren't the players names protected, the same way actors names are (you have to get permission to use them for commercial gain)?"
The protection for both groups "names" is equal.
An actor could do nothing about say a site like imdb.com listing all the movies he appeared in because these would be facts/stats

But now if imdb tried to say imply the actor endorsed the site, by say either makeing his face part of the logo he could stop them
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Chris, 9 Aug 2006 @ 3:15am

MLBvNFL
The NFL will have to play the same way since this is FANTASY ie a text format based game, if it uses faces there might be a problem.
For actuall gameplay THAT where it comes to pay, an animation is another thing that might get by but footage is owned by the specific sport

GAMES are team/player "likes & licences" that have the user controlling said player.
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argo747, 9 Aug 2006 @ 6:11am

Ugh...
When oh when will business entities realize that being draconian about these things usually turns around to bite them in the end?

I suspect that there are way too many lawyers out there with way too much time on their hands. The whole concept that mlb would even consider the notion that they own public facts is bizzare to the extreme. Then again... what did they have to loose? If they pull it off they get paid, big time. In the end it's always about getting paid.
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Chosen Reject, 9 Aug 2006 @ 7:04am

Re: Ugh...
Actually, MLB lost big time. Had they just licensed the information to CBC originally, they would get CBC's money. But they refused, were taken to court, and lost. And because of that loss, every other paying fantasy site will decide they no longer have to pay.

So by refusing to license one company, MLB has opened the flood gates so that no other company will pay anymore. Those who have licences will not pay after the their license expires, or may even try to get out of those license contracts.

MLB was greedy, and now they're going to pay for it.
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Mike4, 9 Aug 2006 @ 7:16am

Can they get their money back?
I'm curious to see if any of these companies that have already paid MLB would try to sue to get their money back.

Since they've been wrongfully charged, is there any law stating they can't ask for a refund?
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Anonymous Coward, 9 Aug 2006 @ 7:20am

I would imagine the real importance is the timing of the facts, or stats. Baseball? there are games every day, so real time stats are not that important. With Football, once a week, and players watch the stats as the games are being played, so a site that offers real time scoring (which NFL would have a right to restrict or sell) is important. In baseball, who cares. This ruling might not affect the NFL at all.
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claire rand, 9 Aug 2006 @ 7:38am

Re: Re: Ugh...
depends.. i'll bet current contracts will be held to be valid and binding. and i'll bet theres a term in there about agreeing to continue paying.

be *new* sites will tell them to take a flying leap.

gun, foot, aim, fire.
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Tennessee Mike, 9 Aug 2006 @ 8:16am

It's Still a Dull game
No matter what, imaginary or real. Baseball is being left behind in an ever accelerating world..MLB should be nurturing all it can in order to keep people interested in a game that few people outside of NYC, Boston or Chicago give a hoot about anymore...
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Baseball is still my favorite, 9 Aug 2006 @ 8:45am

Tennessee Mike... I suppose that when your state doesnt have a MLB team, you would think so... but almost every city that has a baseball team profits off of it, and their fans enjoy it.
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Anonymous Coward, 9 Aug 2006 @ 8:51am

Re: Re: ?
Actually - there are a few fantasy games for actors/entertainers on Yahoo's fantasy games site. You can play Fantasy Survivor (which is based on predicting the order of the contestants being voted off the show) and Fantasy Oscars (which is based on predicting which actors and films will win). Both of these games use the real names of the actors/entertainers - just like the games that use professional athletes.
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Mark, 9 Aug 2006 @ 9:11am

Sports licensing
This was a no-brainer. Unless MLB slipped cash to the judge, there was no way they were going to win a case against a fantasy baseball site. You simply cannot try to charge for the sort of thing that anyone -- you, me, the ten year old down the street -- could compile simply from newspaper box scores. MLB set themselves up to lose.

Now, video games is a different matter. Baseball isn't the best example -- imagine something like football or basketball, where it's much more difficult to represent the game from pure statistics. Video games are more a representation of the game than they are a mathematical recreation of it, and the leagues and league players' associations are very protective of the way that they're portrayed. I used to produce web content for a large game company, and every time we wrote an article about a sports game we had to send it to the players' association for approval, so they could make sure that we weren't defaming their clients. Put a player's likeness in the game and you're playing in the same arena. The first game company that looks at this decision and says, "Hey -- we don't have to pay the licensing fees anymore!" should invest in a quality legal team, because they're in for a fight.

Sooner or later that's going to happen, particularly since EA has been snapping up exclusive rights deals with the major leagues. One other company is going to get sick of dealing with generic pseudo-players and will decide to test the legal implications of putting Peyton Manning in a game that lacks an official NFL license. It will be interesting to see how that plays out; right now I can't forecast a winner.
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Riley, 9 Aug 2006 @ 9:46am

>>
One other company is going to get sick of dealing with generic pseudo-players and will decide to test the legal implications of putting Peyton Manning in a game that lacks an official NFL license.
>>

My feeling is that the NFL will win a case like that. The player's likeness, the NFL teams jerseys and logos, etc. are not public domain and are not facts. In a case like that I think it makes sense for the NFL to be able to retain control over those. Not to mention, EA does actually get official NFL endorsement by NFL players via their license, they get air time during games and that would certainly not be possible for a non-licensed company.

If the leagues want to make money off of licensing fantasy data, they should really approach it more like they do video games. Have a few, high caliber sites that pay the licensing fees and in return get official endorsements, promotion during games, access to use team logos, themes, branding, etc. In this way the league would actually be adding value to those sites and they would likely be more popular as a result.
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Wandering_burr, 9 Aug 2006 @ 10:04am

what about live stats
The still open question is how fast the 'facts' become public property. As someone wrote earlier the NFL has warned that if you are not more than a quarter or so behind the live game with your 'facts' that they will come after you.

It seems to me that facts are facts and that although you clearly could not replay the FOX feed you could watch it live and give your own commentary in a podcast as soon as the play occured.

But the legal precedents will probably take a couple more years. This baseball fantasy case has taken a year and a half to get to this point.
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csh, 9 Aug 2006 @ 10:23am

Re: Re: ?
Their names are not protectected in the sense that I could design a game, called, say, Casting Agent, and include current actors names in the game. I could not use these names for promotional purposes of the game (nor the actors' images) but I could use their names in the game in so much as they are public figures. I don't know what the letter of the law is, but a summary would be that there must be no implication that the named person is involved in the promotion of the game. Think of Trivial Pursuit.
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Anonymous Coward, 9 Aug 2006 @ 1:05pm

A: There is a difference with using facts (statistics) and using the name for a video game (which really has nothing to do with facts.

B: You can podcast a game I would imagine, maybe. You won't be able to do it for profit though.
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Leigh, 9 Aug 2006 @ 2:20pm

It's no surprise to us
We own a fantasy hockey web site and we have been following this case very closely. We were elated...but not surprised at the ruling. This is good news for our business and beleive it or not, good news for MLB and other professional sports. After all we a promoting their business for free...maybe they should pay us???
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Anonymous Coward, 9 Aug 2006 @ 3:56pm

I am not sure how much fantasy sports actually benefits the sports involved, as the players in leagues follow their sport and players differently. They typically don't watch the game, as they don't care about the team, just multiple players on different teams. That being said, and it doesn't matter one way or another, a bigger worry for these leagues is the govt. idea that considers fantasy leagues gambling.
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Chris, 9 Aug 2006 @ 7:00pm

Re: Re: Re: ?
Actually not, there is a law about the use of some one elses name against their wishes for comercial use.
thats one reason you see the "no one dead or alive" even in fantasy/sci-fi movies.
Also if youare old enough to remember the early NFL game you would have a mix of names and numbers (eg: number 16 completes a pass to number 80...Touchdown S.F)
The union had to get agrement from a number of stars at the time and now the licence is all names/numbers/teams
and everybody gets a small cut of the paycheck (retirement fund?)
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Conbat, 19 Feb 2007 @ 4:33pm

players names
when it comes to video games...some pro players copyright the use of their name so their name might appear as player #24.

You see this alot in the old school madden teams
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charlotte baseball, 27 Sep 2010 @ 9:12pm

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Jim Barnes, 8 Jul 2019 @ 2:06pm

Re: Can they get their money back?
Baseball's royalty greed hit me hard in the 1970s and 80s. Accordingly, I quit creating player cards for STATIS-PRO BASEBALL - a product I created in 1968 and later sided with Avalon Hill and Sports Illustrated. I think of all the money I paid to baseball even when it charged $2,500 for non-retail and $10K for a retail license (plus a percent of sales) and sure would like to recover it.My favorite baseball season was when player's were on strike.
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