Baseball, books, and property rights

Alan Schwarz has an interesting new article in the New York Times on the baseball statistics case. (The article cites, among others, Eugene Volokh.) A few of the more interesting snippets (this is all fair use, I tell you!):

“If anything, this case is even more impactful if the court rules for the players, because it will speak to any time you use a name in a commercial venture,” said Eugene Volokh, a professor of law at U.C.L.A. “What if you use a historical figure’s name in a historical novel? Or other games, like Trivial Pursuit? How about ‘Jeopardy!’? Would they be liable as well? That seems to be the logical consequence of this. How do you identify what is news, and other times when there’s communication of factual information?” . . .

“Fantasy leagues are an intermediate case,” said Rod Smolla, dean of the University of Richmond Law School. “This could become like the Grokster case in the music-downloading world, where the Supreme Court could be asked to draw that line between the benefits of public use and ownership of property.” Fame, Mr. Smolla said, “belongs in part to the people who earn it and the public that gives it.

There you have the basic arguments. The difficulty comes in determining the place of baseball statistics on a continuum. 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. On the other end are basic facts known to every Tom, Dick and Harry at every sports bar in America, like the fact that Ted Williams was the last player to hit .400. A detailed list of World Series winners back to 1901 looks more property-like; “the White Sox won it last year” doesn’t. And so forth.

Complicating matters further, the statistics case will play out in a world where ideas about property itself may be somewhat in flux. An interesting piece by Kevin Kelly ran in the NYT magazine last Sunday, about the effects of digitizing intellectual property. Kelly’s article argued that:

In a regime of superabundant free copies, copies lose value. They are no longer the basis of wealth. Now relationships, links, connection and sharing are. Value has shifted away from a copy toward the many ways to recall, annotate, personalize, edit, authenticate, display, mark, transfer and engage a work. . .

Copies don’t count any more. Copies of isolated books, bound between inert covers, soon won’t mean much. Copies of their texts, however, will gain in meaning as they multiply by the millions and are flung around the world, indexed and copied again. What counts are the ways in which these common copies of a creative work can be linked, manipulated, annotated, tagged, highlighted, bookmarked, translated, enlivened by other media and sewn together into the universal library.

There’s a lot of truth to Kelly’s argument, and it applies to much more than just books. It certainly applies in the baseball statistics case, and that reality is going to be the backdrop that determines how the case affects property rights.

Thus, Eugene’s ‘Jeopardy!’ example is a good one. We can all imagine Alex Trebek and a ‘Jeopardy!’ answer of “This baseball player was the last to hit .400.” (“Question: Who is Ted Williams?”) The real emphasis is not on the definition of property per se, but rather on what are acceptables uses of the property. This is because in a world of low-marginal-cost copying, no one can prevent me from going to and assembling lengthy lists of player statistics. And I don’t harm MLB or anyone else if I collect such copies. What MLB wants is control over how I can use such lists.

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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):