Baseball statistics: history or property?

[homer]

 Fantasy league company sues for free rights to batting averages

"Major League Baseball has claimed that intellectual property law makes it illegal for fantasy league operators to commercially exploit the identities and statistical profiles of big league players."

[Arky Vaughan]

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Fantasy league company sues for free rights to batting averages

"Major League Baseball has claimed that intellectual property law makes it illegal for fantasy league operators to commercially exploit the identities and statistical profiles of big league players."

The utter stupidity of Major League Baseball in taking a move to stifle a form of entertainment that draws massive attention to its product is almost incomprehensible.

I wonder whether we should be charged a fee per post and column on this Web site for describing what happens during games, since apparently such descriptive information may be proprietary.

[jasonact]

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Fantasy league company sues for free rights to batting averages

"Major League Baseball has claimed that intellectual property law makes it illegal for fantasy league operators to commercially exploit the identities and statistical profiles of big league players."

The utter stupidity of Major League Baseball in taking a move to stifle a form of entertainment that draws massive attention to its product is almost incomprehensible.

I continue to marvel at the way MLB continues to do this, (see also MLB's restriction of online broadcasting rights). I also marvel at the fact that it's as popular as it is, given that MLB does everything it can to sabotage itself. It's like they think that self-promotion can only be done at the expense of profits.

[S.P. Rodriguez]

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Fantasy league company sues for free rights to batting averages

"Major League Baseball has claimed that intellectual property law makes it illegal for fantasy league operators to commercially exploit the identities and statistical profiles of big league players."

The utter stupidity of Major League Baseball in taking a move to stifle a form of entertainment that draws massive attention to its product is almost incomprehensible.

I wonder whether we should be charged a fee per post and column on this Web site for describing what happens during games, since apparently such descriptive information may be proprietary.

Oh, I don't think they want to stifle anything.  I think MLB (read Bud Selig) wants it's piece of the pie.  I have a good friend who walked away with $1000 in a fantasy league.  Something tells me who ever runs that league made more than that.  Ol' Bud may be an ass-wipe in many ways, but he knows a fruit ripe for the picking when he see's it.

[Bench]

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Fantasy league company sues for free rights to batting averages

"Major League Baseball has claimed that intellectual property law makes it illegal for fantasy league operators to commercially exploit the identities and statistical profiles of big league players."

I seem to remember a case from my early days in law school in which the NBA tried to enjoin some pager company from reporting NBA scores to clients' pagers as an added service. Basically, the Supreme Court said while the NBA has a proprietary interest in displaying its product, a monopoly over the distribution over its product's results is not supported by property law. I can't see how reporting batting averages is any different than reporting NBA scores.

[jasonact]

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Oh, I don't think they want to stifle anything.  I think MLB (read Bud Selig) wants it's piece of the pie.  I have a good friend who walked away with $1000 in a fantasy league.  Something tells me who ever runs that league made more than that.  Ol' Bud may be an ass-wipe in many ways, but he knows a fruit ripe for the picking when he see's it.

Blaming Bud is easy, and he probably deserves much of the blame, but I believe this would still be a problem even if he wasn't driving the ship.

But what MLB fails to recognize is that the entire "pie" could theoretically grow if they promoted themselves better, and this kind of thing does nothing to that end. In my opinion, it's the macro equivalent to trying to make a quick buck without having the patience to make a more profitable long-term investment.

[Arky Vaughan]

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Oh, I don't think they want to stifle anything.  I think MLB (read Bud Selig) wants it's piece of the pie.  I have a good friend who walked away with $1000 in a fantasy league.  Something tells me who ever runs that league made more than that.  Ol' Bud may be an ass-wipe in many ways, but he knows a fruit ripe for the picking when he see's it.

If you take a big dump in the pie, people aren't going to be clamoring for a steaming slice of it.

If MLB wants a slice, then it should introduce its own fantasy game that out-competes the other fantasy games.  Instead, they want to shut down the competition.

[S.P. Rodriguez]

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Oh, I don't think they want to stifle anything.  I think MLB (read Bud Selig) wants it's piece of the pie.  I have a good friend who walked away with $1000 in a fantasy league.  Something tells me who ever runs that league made more than that.  Ol' Bud may be an ass-wipe in many ways, but he knows a fruit ripe for the picking when he see's it.

Blaming Bud is easy, and he probably deserves much of the blame, but I believe this would still be a problem even if he wasn't driving the ship.

But what MLB fails to recognize is that the entire "pie" could theoretically grow if they promoted themselves better, and this kind of thing does nothing to that end. In my opinion, it's the macro equivalent to trying to make a quick buck without having the patience to make a more profitable long-term investment.

MLB leadership is behind this move so, yes, blaming Bud is easy given he's the commissioner.  I'm not scapegoating Selig.  From what I've read,9 Innings (about the Brewers in the late 70's and early 80's) as well as Faye Vincent's book,  it's pretty clear Selig had an agenda and he was successful.  It's worked for the most part, as MLB has grown, but that doesn't mean he's still not an ass-wipe.  Both the NBA and NFL have better leadership and it shows, and I can't stand watching either of those sports, for what that is worth.  

None of this would be an issue if MLB had the huevos to offer MLB "sponsored" fantasy leagues to compete with existing leagues, assuming they don't already. I'm not a fantasy baseball guy so I have no clue about all the leagues available.  So, if they don't want anyone using the batting and pitching stats for financial gain, does MLB want all fantasy league interest to die?  No.  Do they want to put an end to league prizes?  I seriously doubt they care.  Do they want royalty or right to use fees?  I suspect so.

[HudsonHawk]

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If MLB wants a slice, then it should introduce its own fantasy game that out-competes the other fantasy games.  Instead, they want to shut down the competition.

Now wait a minute.  Isn't that like saying "if publishing companies don't want Joe Schmoe making money selling their copyrighted works on his internet website, they should develope their own competing website to sell their works"?  Why should MLB be forced to compete for its own product?  It's there's.  They shouldn't be forced to allow the public to profit from it.

[S.P. Rodriguez]

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Oh, I don't think they want to stifle anything.  I think MLB (read Bud Selig) wants it's piece of the pie.  I have a good friend who walked away with $1000 in a fantasy league.  Something tells me who ever runs that league made more than that.  Ol' Bud may be an ass-wipe in many ways, but he knows a fruit ripe for the picking when he see's it.

If you take a big dump in the pie, people aren't going to be clamoring for a steaming slice of it.

If MLB wants a slice, then it should introduce its own fantasy game that out-competes the other fantasy games.  Instead, they want to shut down the competition.

I should have waited for your response and simply said ditto...

Seriously, if MLB wants to contend they don't have a serious competitive edge in regards to marketing their league, my low opinion of their business sense will be lowered further.  They already have a central scouting report system.  They have control over what stats are published.  They are the source of record for all stats, as it is, why not offer the additional information to those participating in their leagues or for a fee to those already in existance, rather than cry "it's my ball and you can't play with it unless I say so!".

[S.P. Rodriguez]

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If MLB wants a slice, then it should introduce its own fantasy game that out-competes the other fantasy games.  Instead, they want to shut down the competition.

Now wait a minute.  Isn't that like saying "if publishing companies don't want Joe Schmoe making money selling their copyrighted works on his internet website, they should develope their own competing website to sell their works"?  Why should MLB be forced to compete for its own product?  It's there's.  They shouldn't be forced to allow the public to profit from it.

If it's truly a problem, why wasn't it a problem 15-20 yrs ago when fantasy leagues were starting out?  They may or may not have the law on their side but they are still taking a big crap on fantasy baseball leagues.

[pravata]

A better article
The Link

see also
The Link

[HudsonHawk]

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If it's truly a problem, why wasn't it a problem 15-20 yrs ago when fantasy leagues were starting out?

What makes you think it wasn't?  Furthermore, how is that an excuse now?  Do you really think "I've been stealing from you for years, so the laws don't apply to me anymore" is a legitimate defense?

[pravata]

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If MLB wants a slice, then it should introduce its own fantasy game that out-competes the other fantasy games.  Instead, they want to shut down the competition.

Now wait a minute.  Isn't that like saying "if publishing companies don't want Joe Schmoe making money selling their copyrighted works on his internet website, they should develope their own competing website to sell their works"?  Why should MLB be forced to compete for its own product?  It's there's.  They shouldn't be forced to allow the public to profit from it.

If it's truly a problem, why wasn't it a problem 15-20 yrs ago when fantasy leagues were starting out?  They may or may not have the law on their side but they are still taking a big crap on fantasy baseball leagues.

Because they're making a lot of money off the output of the baseball industry. [edit] 15-20 years ago it was just a hobby, now fantasy gaming is a billion dollar industry.[edit]  MLB missed the opportunity early in the game, however they have been charging licensing fees.  It is not surprising that people think they are entitled to this information for free, as they have done with movies and music.

[S.P. Rodriguez]

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If it's truly a problem, why wasn't it a problem 15-20 yrs ago when fantasy leagues were starting out?

What makes you think it wasn't?  Furthermore, how is that an excuse now?  Do you really think "I've been stealing from you for years, so the laws don't apply to me anymore" is a legitimate defense?

No, what I think is a reasonable defense is, as the article Pravata pointed out, that stats were considered in the public domain.  These resulst were considered public domain until someone figured out a way to make money off of something as inane as batting average, OBP, SLG%, K's, BB, and comparable stats from a pitching perspective.  Because interest in these leagues has reached fevered levels, MLB wants a cut because they see the "obvious" financial gains.  My comments about their lack of a business sense is why MLB wait for an outside agency to be successful with fantasy leagues before taking action, claiming theft?  

Or, to put it more simply, someone else made something out of what MLB considered nothing and now they want a piece of the action.

[VirtualBob]

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If MLB wants a slice, then it should introduce its own fantasy game that out-competes the other fantasy games.  Instead, they want to shut down the competition.

Now wait a minute.  Isn't that like saying "if publishing companies don't want Joe Schmoe making money selling their copyrighted works on his internet website, they should develope their own competing website to sell their works"?  Why should MLB be forced to compete for its own product?  It's there's.  They shouldn't be forced to allow the public to profit from it.

No ... that is not a good analogy.  It is as if Joe Schmoe writes his own book on baseball and publishes it on his own website, and then MLB comes along and says 'we own the concept of books on baseball; you must cease and desist just on the off-chance that we get around to writing our own book on baseball sometime and collecting for ourselves all of those $$$ that people are sending your way.

In short, once other people create the product and validate the marketplace, suddenly MLB decides they want to reserve all of the profit for themselves simnply because the topic is baseball.  Are they going to start charging the newspapers to publish the stats?  Or the TV stations to broadcast the scores??  This is silly!  Furthermore, MLB does benefit indirectly from the increased interest that fantasy leagues generate for their real product.

Another apt analogy ... What if GM were to sue Fox for unauthorized use of their SUV's in 24 (or any other popular show) without payment?  In "real life" GM (and others) actually *pay* for such product placements.  That's how badly MLB understands this issue.

[S.P. Rodriguez]

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Because they're making a lot of money off the output of the baseball industry. [edit] 15-20 years ago it was just a hobby, now fantasy gaming is a billion dollar industry.[edit]  MLB missed the opportunity early in the game, however they have been charging licensing fees.  It is not surprising that people think they are entitled to this information for free, as they have done with movies and music.

Again, this goes back to the fact that baseball didn't care until someone else created a way to make money off it.  I presume newspapers and other news outlets pay for the right to publish the information.  If not, how can MLB claim the right to impose licensing rights?

[pravata]

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If MLB wants a slice, then it should introduce its own fantasy game that out-competes the other fantasy games.  Instead, they want to shut down the competition.

Now wait a minute.  Isn't that like saying "if publishing companies don't want Joe Schmoe making money selling their copyrighted works on his internet website, they should develope their own competing website to sell their works"?  Why should MLB be forced to compete for its own product?  It's there's.  They shouldn't be forced to allow the public to profit from it.

No ... that is not a good analogy.  It is as if Joe Schmoe writes his own book on baseball and publishes it on his own website, and then MLB comes along and says 'we own the concept of books on baseball; you must cease and desist just on the off-chance that we get around to writing our own book on baseball sometime and collecting for ourselves all of those $$$ that people are sending your way.

In short, once other people create the product and validate the marketplace, suddenly MLB decides they want to reserve all of the profit for themselves simnply because the topic is baseball.  Are they going to start charging the newspapers to publish the stats?  Or the TV stations to broadcast the scores??  This is silly!  Furthermore, MLB does benefit indirectly from the increased interest that fantasy leagues generate for their real product.

Another apt analogy ... What if GM were to sue Fox for unauthorized use of their SUV's in 24 (or any other popular show) without payment?  In "real life" GM (and others) actually *pay* for such product placements.  That's how badly MLB understands this issue.

I dont think they want "all the profits" they want to charge a licensing fee, as they do with newspapers, etc.

[Arky Vaughan]

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Now wait a minute.  Isn't that like saying "if publishing companies don't want Joe Schmoe making money selling their copyrighted works on his internet website, they should develope their own competing website to sell their works"?  Why should MLB be forced to compete for its own product?  It's there's.  They shouldn't be forced to allow the public to profit from it.

The better analogy would be the publishing companies trying to stop the New York Times Review of Books from making a profit printing reviews of the publishing companies' books.

There is no problem with MLB objecting to its game being sold without a license.  But a description of its game?

[HudsonHawk]

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No ... that is not a good analogy.  It is as if Joe Schmoe writes his own book on baseball and publishes it on his own website, and then MLB comes along and says 'we own the concept of books on baseball; you must cease and desist just on the off-chance that we get around to writing our own book on baseball sometime and collecting for ourselves all of those $$$ that people are sending your way.

That's a horrible analogy.  Since when are the fantasy leagues the ones putting on the games in which the stats are generated?  They are taking something that MLB has produced, has copyrighted ("the pictures, descriptions, or accounts of this game...") and are trying to say that's public domain for anyone to use.  

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In short, once other people create the product and validate the marketplace, suddenly MLB decides they want to reserve all of the profit for themselves simnply because the topic is baseball.

No because others are using products produced by MLB.  MLB isn't claiming to have a copyright on anything baseball, just those things that they produced and paid for.

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  Are they going to start charging the newspapers to publish the stats?

If they did, that's there right.

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Furthermore, MLB does benefit indirectly from the increased interest that fantasy leagues generate for their real product.

Whether they benefit or not is irrelevant.  The point is it's their product, and they should be allowed to dispurse it as they see fit.

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Another apt analogy ... What if GM were to sue Fox for unauthorized use of their SUV's in 24 (or any other popular show) without payment?  In "real life" GM (and others) actually *pay* for such product placements.  That's how badly MLB understands this issue.

If GM didn't want Fox to use their vehicles, then GM should have that right.  That's the only thing at issue here.

[Arky Vaughan]

Statistics are a description of the game, just like a newspaper column telling what happened is.  The product is the exhibition of baseball games.  Is there an intellectual property right to the description of a product?

This is not the same as sharing music or movies over the Internet.  If someone were reproducing the copyrighted statistics off MLB's Web site, that's one thing.  If someone wants to count himself, that's something else.

If MLB has an intellectual property interest in the statistics, then that means Red Barber's old hand-kept scorebook, sold at auction, would be a sale of MLB's intellectual property, since it would depict MLB's product, i.e., the games, through statistics.

And, in fact, all written accounts of games would so qualify.  All the columns on this site, describing things that happened during games, would be an infringement on MLB's intellectual property rights.

[HudsonHawk]

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No, what I think is a reasonable defense is, as the article Pravata pointed out, that stats were considered in the public domain.

Considered by whom?   Certainly not MLB.  They've copyrighted such for this very reason.

[HudsonHawk]

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Statistics are a description of the game, just like a newspaper column telling what happened is.  The product is the exhibition of baseball games.  Is there an intellectual property right to the description of a product.

MLB thinks so, which is why they've gone through great lengths to tell you that "pictures, descriptions, or accounts of this game without the express written permission of Major League Baseball is prohibited".

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If someone were reproducing the copyrighted statistics off MLB's Web site, that's one thing.  If someone wants to count himself, that's something else.

Why does it have to be published on a website to be copyright protected?

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If MLB has an intellectual property interest in the statistics, then that means Red Barber's old hand-kept scorebook, sold at auction, would be a sale of MLB's intellectual property, since it would depict MLB's product, i.e., the games, through statistics.

True.

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And, in fact, all written accounts of games would so qualify.  All the columns on this site, describing things that happened during games, would be an infringement on MLB's intellectual property rights.

Exactly.

[Arky Vaughan]

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No, what I think is a reasonable defense is, as the article Pravata pointed out, that stats were considered in the public domain.

Considered by whom?   Certainly not MLB.  They've copyrighted such for this very reason.

Once, when proposing to write a column on this Web site's predecessor, I contacted STATS, Inc. about obtaining some data that is not in the public domain.

I was told STATS, Inc. would provide me with the data, provided I paid for it and provided I did not reuse it for profit.

Now, it was very obvious to me at the time that the data was proprietary to STATS, Inc., since they collected and compiled the data, and I would not otherwise have access to it.

But it never occurred to me or to the person I was speaking with at STATS, Inc. that the data actually belonged to MLB, since it was a description of MLB's product, i.e., the game on the field.

[HudsonHawk]

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But it never occurred to me or to the person I was speaking with at STATS, Inc. that the data actually belonged to MLB, since it was a description of MLB's product, i.e., the game on the field.

I'm pretty sure STATS, Inc. pays MLB for the use of all those statistics.

[HudsonHawk]

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But it never occurred to me or to the person I was speaking with at STATS, Inc. that the data actually belonged to MLB, since it was a description of MLB's product, i.e., the game on the field.

I'm pretty sure STATS, Inc. pays MLB or otherwise has permission to use of all those statistics.

[Arky Vaughan]

By your analysis, if I write, "Jeff Bagwell went 2-for-4 last night," MLB could restrict me from saying this unless I paid for it.

This seems like a pretty amazing expansion of government protection of intellectual property at the expense of freedom of speech.

So why are publishers and movie studios unable to require royalties from reviewers who describe books or films?

[Arky Vaughan]

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But it never occurred to me or to the person I was speaking with at STATS, Inc. that the data actually belonged to MLB, since it was a description of MLB's product, i.e., the game on the field.

I'm pretty sure STATS, Inc. pays MLB for the use of all those statistics.

They may pay for the right to have a guy in the pressbox to collect the statistics, or to be able to use MLB and MLBPA trademarks (team and player names) in their books.  They may also pay for the sponsorship rights to be an "official" statistical provider.  But these are different from paying for the use of the statistics, unless MLB is collecting the statistics and selling them to STATS, Inc., or STATS, Inc. and MLB have a contract stating that STATS, Inc. is collecting the statistics on behalf of MLB.

[Arky Vaughan]

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... or to be able to use MLB and MLBPA trademarks (team and player names) in their books ...

Which, by the way, is why you used to get NBA video games without Jordan's name being used.  The team names and player names are one thing.

Descriptions of what happened are something else.

[Arky Vaughan]

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MLB thinks so, which is why they've gone through great lengths to tell you that "pictures, descriptions, or accounts of this game without the express written permission of Major League Baseball is prohibited".

The descriptions and accounts spoken by Milo Hamilton or Bill Brown belong to the Astros and/or MLB because Milo and Bill are paid employees of MLB, not because they describe the game that is MLB's product.

This is not saying any description of the game belongs to MLB (for example, somebody on this site's description that, "the Astros lost 5-4 last night").  It is saying that the descriptions rendered by the Astros'/MLB's broadcast belong to MLB.  Which nobody disputes.

[HudsonHawk]

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So why are publishers and movie studios unable to require royalties from reviewers who describe books or films?

I would guess that reviewers of books or movies have limits on what they can describe before it becomes a copyright violation.  They cannot recite the entire book in their article claiming, "hey, you published it and I read it...what I do with the information I read, including profiting from it, is up to me, not you".

[VirtualBob]

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Furthermore, MLB does benefit indirectly from the increased interest that fantasy leagues generate for their real product.

Whether they benefit or not is irrelevant.  The point is it's their product, and they should be allowed to dispurse it as they see fit.

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Another apt analogy ... What if GM were to sue Fox for unauthorized use of their SUV's in 24 (or any other popular show) without payment?  In "real life" GM (and others) actually *pay* for such product placements.  That's how badly MLB understands this issue.

If GM didn't want Fox to use their vehicles, then GM should have that right.  That's the only thing at issue here.

We are obviously on opposite sides of some fence here, which is fine, but allow me one quibble.  I am not arguing that MLB does not have rights here ... I am arguing that they are STUPID.  They get a lot of 'free marketing' from fantasy baseball and they are likely reducing the size of the whole pie by forcing their way in at this point.  

Secondarily, I am arguing that by waiting for someone else to spend the time/money/resources to develop the market before stepping in to try to get their piece, they have both reinforced their image as out of touch with their target market and also taken (in my opinion) unfair advantage of those who were more willing to invest up front to prove the concept.

[HudsonHawk]

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We are obviously on opposite sides of some fence here, which is fine, but allow me one quibble.  I am not arguing that MLB does not have rights here ... I am arguing that they are STUPID.

Well then argue no more for we are not disagreeing.  I'm not arguing that it's a smart thing to do, just that it's their right to be pricks, if they want.

[VirtualBob]

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We are obviously on opposite sides of some fence here, which is fine, but allow me one quibble.  I am not arguing that MLB does not have rights here ... I am arguing that they are STUPID.

Well then argue no more for we are not disagreeing.  I'm not arguing that it's a smart thing to do, just that it's their right to be pricks, if they want.

Sounds like we are in violent agreement.

[Bench]

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So why are publishers and movie studios unable to require royalties from reviewers who describe books or films?

I would guess that reviewers of books or movies have limits on what they can describe before it becomes a copyright violation.  They cannot recite the entire book in their article claiming, "hey, you published it and I read it...what I do with the information I read, including profiting from it, is up to me, not you".

I think the difference is that the reproduction of an original work is what is protected under copyright, whereas basic information is not. For instance, the yellow pages company doesn't have a copyright in listing phone numbers alphabetically. This reasoning applies to the instant scenario in two ways. First, copyright protection in a factual compilation is extremely thin. Like writing "Joe B.'s phone number is 555-5555" cannot exclude another from publishing the exact same information. The primary objective of copyright is not to reward the labor of the authors, but to promote progress in the arts. Craig Biggio going 1-3 with 2 walks, 1 run, and an error is simple fact. Recitation of that fact is not an original work of authorship. Second, to copyright a factual compilation, it must be arranged in a creative an original manner. Organizing names alphabetically is too obvious to be creative enough to deserve copyright. Likewise, reporting a player's factual results in alphabetical, or oganized by the team the players are on, and the order in which the events occured (batting order) are hardly original enough for MLB to have the right to exclude others from compiling that information.

To me baseball statistics and fantasy baseball are little different than following puts and calls in the stock market. There's no need to pay a cut to Dell because I think they're stock will go up a few points over the next week, read about in the WSJ, and made or lost some money on it.

[Bench]

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We are obviously on opposite sides of some fence here, which is fine, but allow me one quibble.  I am not arguing that MLB does not have rights here ... I am arguing that they are STUPID.

Well then argue no more for we are not disagreeing.  I'm not arguing that it's a smart thing to do, just that it's their right to be pricks, if they want.

They certainly have the right to be pricks, a right often invoked by MLB, but I'm doubtful that MLB has a IP right to exclude others from the dessimination of statistics. It's news, it's history, it's fact, it's not an original work of authorship fixed in a tangible form.

[Arky Vaughan]

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[Well then argue no more for we are not disagreeing.  I'm not arguing that it's a smart thing to do, just that it's their right to be pricks, if they want.

It should go without saying that I do not think they should be deprived of their rights just because they are acting like pricks or that their rights were lost because they did not assert them previously or because certain information is in the public domain.

I just think that as an intellectual property matter, the description of a product is not protected the way the product itself is. MLB's best legal argument is going to be that the statistics themselves are a product, belonging to MLB, separate and apart from the exhibition of the game itself, which is what would traditionally be considered MLB's product.

They may identify a judge willing to accept that argument, but that finding would have implications far beyond fantasy baseball.

[pravata]

The NBA  case was overturned on appeal and the stats could be broadcasted, because,

the Court (SDNY) ruled that neither Motorola nor Stats were misappropriating the NBA ?s property, because both Motorola and Stats expended their own resources in gathering, assembling, and transmitting real-time sports statistics
The Link

From the opinion,

Because the SportsTrax device and AOL site reproduce
only factual information culled from the broadcasts and
none of the copyrightable expression of the games,
appellants did not infringe the copyright of the broadcasts.  

The Link

However, consider also, from a copyright blog

An important decision in Feist Publications, Inc. v. Rural Telephone Service Co., Inc. is applicable here.  (the decision that said phone numbers aren?t copyrightable) Not only did the court reject the "sweat of the brow" position and reiterate the need for originality, but they went on to consider the question whether a factual compilation was worthy of protection.   Reasoning that "certain factual works may possess the requisite modicum of creativity to warrant copyright protection," the court held that in some cases, compilations could be protected under copyright law.

So, compilations can often have the necessary degree of originality essential in obtaining copyright protection.  What separates fantasy sports statistical compilations from an ordinary, purely factual database is that "a compilation selects specific facts, in what order to place them, and how to arrange data so that readers can effectively use (the information.)"  The economic value of a compilation - in this case, the fee charged by Internet services to fantasy baseball players - is not sufficient in itself to be considered worthy of copyright protection. (emphasis added)
The Link

[Arky Vaughan]

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The NBA  case was overturned on appeal and the stats could be broadcasted, because,

the Court (SDNY) ruled that neither Motorola nor Stats were misappropriating the NBA ?s property, because both Motorola and Stats expended their own resources in gathering, assembling, and transmitting real-time sports statistics
The Link

From the opinion,

Because the SportsTrax device and AOL site reproduce
only factual information culled from the broadcasts and
none of the copyrightable expression of the games,
appellants did not infringe the copyright of the broadcasts.  

The Link

However, consider also, from a copyright blog

An important decision in Feist Publications, Inc. v. Rural Telephone Service Co., Inc. is applicable here.  (the decision that said phone numbers aren?t copyrightable) Not only did the court reject the "sweat of the brow" position and reiterate the need for originality, but they went on to consider the question whether a factual compilation was worthy of protection.   Reasoning that "certain factual works may possess the requisite modicum of creativity to warrant copyright protection," the court held that in some cases, compilations could be protected under copyright law.

So, compilations can often have the necessary degree of originality essential in obtaining copyright protection.  What separates fantasy sports statistical compilations from an ordinary, purely factual database is that "a compilation selects specific facts, in what order to place them, and how to arrange data so that readers can effectively use (the information.)"  The economic value of a compilation - in this case, the fee charged by Internet services to fantasy baseball players - is not sufficient in itself to be considered worthy of copyright protection. (emphasis added)
The Link

STATS, Inc. guards zone ratings (OK, stop snickering now) because they are a proprietary method of counting something, and STATS, Inc. compiled all the data.

If I want to watch every game and count how many times Nomar screws around with his batting gloves and publish that statistic, it's highly unlikely MLB is going to be able to stop me from selling that number (assuming anybody were willing to pay for it).

[pravata]

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The NBA  case was overturned on appeal and the stats could be broadcasted, because,

the Court (SDNY) ruled that neither Motorola nor Stats were misappropriating the NBA ?s property, because both Motorola and Stats expended their own resources in gathering, assembling, and transmitting real-time sports statistics
The Link

From the opinion,

Because the SportsTrax device and AOL site reproduce
only factual information culled from the broadcasts and
none of the copyrightable expression of the games,
appellants did not infringe the copyright of the broadcasts.  

The Link

However, consider also, from a copyright blog

An important decision in Feist Publications, Inc. v. Rural Telephone Service Co., Inc. is applicable here.  (the decision that said phone numbers aren?t copyrightable) Not only did the court reject the "sweat of the brow" position and reiterate the need for originality, but they went on to consider the question whether a factual compilation was worthy of protection.   Reasoning that "certain factual works may possess the requisite modicum of creativity to warrant copyright protection," the court held that in some cases, compilations could be protected under copyright law.

So, compilations can often have the necessary degree of originality essential in obtaining copyright protection.  What separates fantasy sports statistical compilations from an ordinary, purely factual database is that "a compilation selects specific facts, in what order to place them, and how to arrange data so that readers can effectively use (the information.)"  The economic value of a compilation - in this case, the fee charged by Internet services to fantasy baseball players - is not sufficient in itself to be considered worthy of copyright protection. (emphasis added)
The Link

STATS, Inc. guards zone ratings (OK, stop snickering now) because they are a proprietary method of counting something, and STATS, Inc. compiled all the data.

If I want to watch every game and count how many times Nomar screws around with his batting gloves and publish that statistic, it's highly unlikely MLB is going to be able to stop me from selling that number (assuming anybody were willing to pay for it).

I think that's what I'm reading.  The zone rating is very apt, that is a completely different stat, which is not compiled by MLB.  If you watch the game(...) compile the stats, put them on your website, you probably can't be touched. But, gleaning the stats from the MLB website or the boxscore in the paper, seems to be a problem.  Another issue that I havent seen addressed here is that it is possible that what MLB chooses to count my have an affect on the copyrightablity of the information.  MLB chooses to count at bats but not how many strides it takes to reach first, that is a choice they make.  The accumulation of choices could constitute a copyrightable work.  Hell, if West can copyright page numbers in case reporters anything is possible.

[Arky Vaughan]

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I think that's what I'm reading.  The zone rating is very apt, that is a completely different stat, which is not compiled by MLB.  If you watch the game(...) compile the stats, put them on your website, you probably can't be touched. But, gleaning the stats from the MLB website or the boxscore in the paper, seems to be a problem.  Another issue that I havent seen addressed here is that it is possible that what MLB chooses to count my have an affect on the copyrightablity of the information.  MLB chooses to count at bats but not how many strides it takes to reach first, that is a choice they make.  The accumulation of choices could constitute a copyrightable work.  Hell, if West can copyright page numbers in case reporters anything is possible.

So the question may come down to where the fantasy providers are getting their data.  If they've got people watching all the games and adding the numbers up themselves, they're likely OK.  If they're taking the data from some other source, then they owe somebody (not necessarily MLB, though) some money.

[Arky Vaughan]

By the way, this sounds like the kind of matter reasonable parties could settle out of court for their mutual benefit.

[pravata]

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By the way, this sounds like the kind of matter reasonable parties could settle out of court for their mutual benefit.

Seems like.  MLB has their own fantasy site, but it can't do the amount of business that is out there.  The more websites there are, the more chance someone has to win the first prize.  Some licensing fees, as a percentage of profit? Otherwise, everybody loses.

[jwhudson]

I have to believe that intellectual property rights is actually spelled MONEY. I'm not sure that the owners, or the union are "reasonable" when it comes to money.

[HudsonHawk]

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So why are publishers and movie studios unable to require royalties from reviewers who describe books or films?

I would guess that reviewers of books or movies have limits on what they can describe before it becomes a copyright violation.  They cannot recite the entire book in their article claiming, "hey, you published it and I read it...what I do with the information I read, including profiting from it, is up to me, not you".

I think the difference is that the reproduction of an original work is what is protected under copyright, whereas basic information is not. For instance, the yellow pages company doesn't have a copyright in listing phone numbers alphabetically. This reasoning applies to the instant scenario in two ways. First, copyright protection in a factual compilation is extremely thin. Like writing "Joe B.'s phone number is 555-5555" cannot exclude another from publishing the exact same information. The primary objective of copyright is not to reward the labor of the authors, but to promote progress in the arts. Craig Biggio going 1-3 with 2 walks, 1 run, and an error is simple fact. Recitation of that fact is not an original work of authorship. Second, to copyright a factual compilation, it must be arranged in a creative an original manner. Organizing names alphabetically is too obvious to be creative enough to deserve copyright. Likewise, reporting a player's factual results in alphabetical, or oganized by the team the players are on, and the order in which the events occured (batting order) are hardly original enough for MLB to have the right to exclude others from compiling that information.

To me baseball statistics and fantasy baseball are little different than following puts and calls in the stock market. There's no need to pay a cut to Dell because I think they're stock will go up a few points over the next week, read about in the WSJ, and made or lost some money on it.

Now THIS actually makes sense to me.  Not that you should consider speaking my language to be a feather in your cap.

[pravata]

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So why are publishers and movie studios unable to require royalties from reviewers who describe books or films?

I would guess that reviewers of books or movies have limits on what they can describe before it becomes a copyright violation.  They cannot recite the entire book in their article claiming, "hey, you published it and I read it...what I do with the information I read, including profiting from it, is up to me, not you".

I think the difference is that the reproduction of an original work is what is protected under copyright, whereas basic information is not. For instance, the yellow pages company doesn't have a copyright in listing phone numbers alphabetically. This reasoning applies to the instant scenario in two ways. First, copyright protection in a factual compilation is extremely thin. Like writing "Joe B.'s phone number is 555-5555" cannot exclude another from publishing the exact same information. The primary objective of copyright is not to reward the labor of the authors, but to promote progress in the arts. Craig Biggio going 1-3 with 2 walks, 1 run, and an error is simple fact. Recitation of that fact is not an original work of authorship. Second, to copyright a factual compilation, it must be arranged in a creative an original manner. Organizing names alphabetically is too obvious to be creative enough to deserve copyright. Likewise, reporting a player's factual results in alphabetical, or oganized by the team the players are on, and the order in which the events occured (batting order) are hardly original enough for MLB to have the right to exclude others from compiling that information.

To me baseball statistics and fantasy baseball are little different than following puts and calls in the stock market. There's no need to pay a cut to Dell because I think they're stock will go up a few points over the next week, read about in the WSJ, and made or lost some money on it.

Do you know of a free website that lists puts and calls?  We can get highs and lows, daily volume, no problem.  How about intraday charts?  There are occasions for the statistics for quarterly highs and lows and also average weekly volume.  Are there free websites that provide this information?  The other thing to keep in mind is that the NYSE (etc) is a quasi-governmental agency.

[Arky Vaughan]

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By the way, this sounds like the kind of matter reasonable parties could settle out of court for their mutual benefit.

Seems like.  MLB has their own fantasy site, but it can't do the amount of business that is out there.  The more websites there are, the more chance someone has to win the first prize.  Some licensing fees, as a percentage of profit? Otherwise, everybody loses.

For one thing, the fantasy baseball sites have to get the data from somewhere unless, again, they're collecting it themselves by watching every game and logging every play.  Just seems like MLB would be an efficient place to get it from -- that is, unless MLB bundles the data with paying for the trademarks of team logos, team names and player names.

[MusicMan]

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  Are they going to start charging the newspapers to publish the stats?

If they did, that's there right.

Hogwash - this has been settled law since the early 20th century.

[Bench]

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By the way, this sounds like the kind of matter reasonable parties could settle out of court for their mutual benefit.

Seems like.  MLB has their own fantasy site, but it can't do the amount of business that is out there.  The more websites there are, the more chance someone has to win the first prize.  Some licensing fees, as a percentage of profit? Otherwise, everybody loses.

For one thing, the fantasy baseball sites have to get the data from somewhere unless, again, they're collecting it themselves by watching every game and logging every play.  Just seems like MLB would be an efficient place to get it from -- that is, unless MLB bundles the data with paying for the trademarks of team logos, team names and player names.

I don't think that determining who gathers the info first hand is dispositive. In IP there's the "hot news" doctrine, which means you can't copyright news, even though you broke the story. Under this, in the days of telegraph, a West coast news agency was allowed to take east coast news stories from the AP, telegraph them to the West Coast, and re-write the stories as their own for the same morning's publication, three hours later. Basically, AP did all the fact-gathering, and the west coast news service rode their coattails. There are a lot of ins and outs to this doctrine, but I feel it has some applicability here.

[bassfan17]

Baseball stats are public knowledge, so Selig can eat it!  

This is just one more reason why baseball is, sadly, on the decline.

[pravata]

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Baseball stats are public knowledge, so Selig can eat it!  

This is just one more reason why baseball is, sadly, on the decline.

The second statement is false.  Attendance at baseball games are higher than ever, The Link  I have no idea what the first statement is trying to convey.

[Col. Sphinx Drummond]

I'm not a IP or copyright lawyer but, it makes sense to protect your clients's domain. I'm not a businessman but, I can't blame any business wanting to have control over how other parties profit from a use of their product. Once you start making exceptions, then everyone wants to be an exception. It seems greedy but MLB not in business to give shit away. I'm not an accountant but, I think there's a different column for promotional expenses than the, giving IP to other businesses to enhance their profitability, column. There's good will and then there's feeding parasites.

[JimR]

so, you're not any of those folks, but you give your opinion anyway? what are you? i'd like to know your opinion about that.

[Col. Sphinx Drummond]

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so, you're not any of those folks, but you give your opinion anyway? what are you? i'd like to know your opinion about that.

I'm of the opinion that I'm still trying to figure that out myself. I work for SBC, technical DSL stuff. I'm gonna retire in a year or two, then maybe teach Media 101 'til I die.

[VirtualBob]

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so, you're not any of those folks, but you give your opinion anyway? what are you? i'd like to know your opinion about that.

I'm of the opinion that I'm still trying to figure that out myself.

Thanks for sharing.