Baseball, books, and property rights

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7 Responses

  1. Marty Lederman says:

    “On one end of the continuum are items that look a lot like property, such as detailed compilations of Derek Jeter’s batting average over the past ten seasons.”

    Compiliations of statistics look like property?! Like BlackAcre? Like intellectual property such as a novel?

    They look like *compilations of facts.*

  2. greglas says:

    Hi Kaimi —

    The key legal issue concerns the commercial use of player names, which is protected in some states by various doctrines that go under the general heading of the right of publicity (which stems from the right of privacy as a matter of doctrinal evolution).

    From the article: “Rather, the central issue concerns celebrities’ ability to control use of their names in commercial ventures, and how this “right of publicity,” which has developed under state common law and statute over the last half-century, may commingle with Constitutional press protections under the First Amendment.”

    Scholars have been debating the merits of the right of publicity for some time, the most well-known criticism is problem Madow’s which can be found here in part:

    I’m rather critical of it myself, as a think are most commentators, but it has some defenders.

    But in any case, low-marginal-cost copying of data is pretty much irrelevant to the policy concerns here. It would probably be better to speak of this as a sports personae case, not a sports statistics case.

  3. David S. Cohen says:

    What’s intrigued me is not the use of historic stats (and by historic, I don’t mean only years ago, I just mean any events occurring in the past), but rather the reporting of game events as they occur. There are several sites that offer internet users the opportunity to follow events as they happen. There are neat little graphics that have improved over the years, so much so that it’s not far off when it’s going to look very much like watching an actual game.

    At what point does simulating a game online by reporting each game event in real-time become broadcasting, with all the attendant licenses, rights, fees, etc.?

    Not being an intellectual property person whatsoever but being a huge baseball enthusiast, this question intrigues me.

  4. Dennis J. Tuchler says:

    Is there any claim that the free use of baseball statistics will affect adversely their production and distribution by organized baseball?

  5. I can’t say that I’ve become more appreciative of MLB’s claims since I first blogged about this case (see here and here). This seems like a classic case of overreach and bullying by an established player faced with a threat to its market dominance.

    Back in March of last year, Jim Gallagher, senior vice president, corporate communications for MLB Advance Media, conveniently summarized the inherent weakness in MLB’s case: “Player statistics are in the public domain. We’ve never disputed that. But if you’re going to use 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.” Of course, public domain status would mean that the statistics could be used for any purpose, commercial or otherwise.

    Ron Coleman pointed out that the case, weak as it is, would turn on the rights in the players’ personalities (see here). Nevertheless, the players’ names, not their personalities or images, are being used; the names are only incidental to the statistics which are in the public domain. For the same reasons that player names can be reported with their game-by-game statistics in the morning sports pages without payment of royalties, I think MLB’s case will fall short; the only question in my mind is whether their market and financial strength will enable them to extract a compromise from the smaller and more fragmented fantasy/rotisserie league proprietors.

    Speculating on a point I’ve not yet seen reported, if there would be any merit to MLB’s player personality claims, it would be in the distinction between those fantasy leagues on the one hand and sports page statistics and statistics-based games like the old APBA Baseball on the other — namely, the relevance of external, real world, real-time information on trading. The sports pages report past events; that a given player was implicated for drug use today or was involved in an altercation with a teammate last night has no bearing at all on his statistics from yesterday afternoon’s game. Similarly, the use of past statistics in a game like APBA is unaffected by what subsequently happens to a player professionally or personally; if you’re playing with Mark McGwire’s or Sammy Sosa’s 1998 statistics, it makes no difference that the former was allegedly on steroids at the time or the latter’s career went rapidly downhill thereafter.

    While fantasy leagues calculate their standings using actual performances — “dead” statistics like those in the morning papers — the critical team composition and trading aspects of the fantasy games rely in large part on assessments of a player’s future performance; these assesments definitely take account of the personalities involved — the player’s work ethic, relationships with his teammates and managers, and his troubles off-the-field are all relevant and not reflected just in the box scores. In other words, would you want Player X who has a .399 batting average, a .610 slugging percentage, 713 home runs, and eight gold gloves over his lifetime? If you know that Player X is Barry Bonds, subject of the “Game of Shadows” expose on the BALCO steroids scandal, the focus of virtually-unprecedented media attention for that and for his pursuit of Babe Ruth’s lifetime home runs record, a player with a combative stance toward the press and pretty much everyone else, and a mercurial sort generally, do you still want him? Perhaps, but maybe at a much lower fantasy price or only if you have the right team mix otherwise.

    Once personality and real-world struggles are injected into the equation, the results can change. I don’t think that this fact alone will produce a win for MLB, but it may just keep them in the ballpark.

  6. “A detailed list of World Series winners back to 1901 looks more property-like; ‘the White Sox won it last year’ doesn’t.”

    This is a thought-provoking post, but I don’t agree that the distinction between those two is the important one here. As the Supreme Court has held (Feist), there is no “sweat of the brow” theory of copyright where a lot of factual information that the average sports bar patron doesn’t know by heart becomes propertized, while “common knowledge” stays in the public domain. That is why this case will be decided under other theories related to rights of publicity rather than direct propertization.

    Proposals to create special database protection for such compiled factual information have been rejected in the US (though not Europe). Thank goodness, in my view, because determining ownership based on something as slippery and hard to judge as the continuum described here would be intolerably difficult. And as you note, because assembling facts gets easier in a digital world, there will be even less need for incentives to get people to do it.

    In the end, all IP really is about licensing uses. And, in general, uses of facts should remain license-free.

  7. greglas says:

    Well, if I might say it again, this case isn’t about copyright, it is about rights of publicity. The copyright gets introduced via the declaratory judgment complaint, which is beside the point.

    As far as distinguishing names from personalities — right of publicity law doesn’t do that.

    Here’s a very brief overview:

    There’s a recent paper by Mark Lemley and Stacey Dogan on rights of publicity that might be interesting to some readers (I found it a very good read):