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Facts are not copyrightable, morons. Get over yourselves. For the appelate court to find otherwise, they would have to somehow finagle away the First Amendment issue the lower court found compelling.
Exactly.
The question before the court is whether a player's statistical record, as used in fantasy games, is a "symbol of his identity" that is being used with the intent to "obtain a commercial advantage" without the consent of the affected player(s). I think it's pretty clear that CBC intends to obtain a commercial advantage from the use of the statistical records in its fantasy games, despite the splitting of hairs that appeared in the magistrate's decision in the District Court, and I also think it's pretty apparent that statistics as commonly used in fantasy games are part and parcel of the player's identity - without the idea that you are trading "real players", fantasy games lose their appeal.
-- MWE
Amicus Briefs Urging Higher Court to Reverse Ruling In Favor of CBC (NBA Properties Inc., NHL Enterprises, L.P., NFL Ventures, L.P., National Association for Stock Car Auto Racing, Inc. (NASCAR), PGA Tour, Inc., WNBA Enterprises, LLC, NFL Players Association, International Licensing Merchandisers' Association Inc.)
Ask the music industry how well fighting the electronic age turned out. My bet is that all this leads to are less 'pay for play' fantasy sites and a lot more shareware that allows easier running of fantasy leagues from a desktop, rather than via a central site and server.
The numbers will get out - and building a widget to aggregate them isn't all that hard. The only reason no one does it now - most fantasy sites, even the best, are either free already, or the fees -- $100 or so spread amongst all league owners which comes out to less than 2 beers at a ballpark -- are so slight that it's not really worth anyone's time.
I hate to break it to everyone -- but our concepts of ownership, copyright, commerce, capitalism, etc in the pre-electronic age just don't translate so readily into online world. I'm not advocating that ownership means nothing online - I'm just saying our modern commercial enterprises are incredibly naive if they think they can litigate patches into something that evolves so quickly. In the time it would take something like this to weave its way up to SCOTUS, who the hell will care what SCOTUS opines -- because there will be another dozen solutions just unique enough to require their own batch of cases, and several dozen others that were downright illegal, but readily available.
Frankly, some of the neander-corporatists would do well to listen to themselves on climate change and apply the same line of thought to their transition into the electronic age: We can't be sure of anything, there are a lot of competing theories and ideas, so it's best that we take it slow and not over-regulate, legislate, and litigate would-be solutions to our anxiety.
To be fair, Mike, it's the player's statistical record along with his name that's being used.
I seem to remember that there was a lengthy discussion about whether a fantasy site could use statistical records without the names (which would be hard to do, but still) by assigning them random names.
FWIW, and likely they're just not big enough money makers for MLB and the MLBPA to care -- both pre-license deal Baseball Mogul and earlier versions of OOTP did this. They didn't have MLB logos nor did they have real player names- but you clearly got rosters of 'real' players based on their historical stats and attributes. Mogul was hilariously transparent (I think they just changed all the vowels in player names... I seem to recall Merk Bollhern being nifty utility IF who would hit lots of homers and draw lots of walks). OOTP at least did a completely random name generation.
Other than the advanced degree of sophistication, what exactly is the difference between the stats compiled for fantasy leagues that baseball claims are subject to copyright claims, and the sort of stats that have been published in newspapers and baseball guides, registers, and / or encyclopedias for nearly 140 years, without any claim or published notice that they have been "authorized" in any way by organized baseball?
Furthermore, various private commericial enterprises like The Sporting News and Elias have all along claimed copyright for their stats. How can this be, if baseball owns the copyright to a player's statistcs? What would prevent The Sporting News from selling their stats to the fantasy leaguers?
The legalities of all this are a mystery to me, but from a layman's standpoint the idea of copyrighting statistics seems as absurd as copyrighting a court transcript. Beyond that, I have a strong hunch that Zonk is getting to the heart of the matter when he states in essence that you can't stuff the genie back into the bottle.
Where does one find the phrase "right of publicity" in the Constitution?
I don't know... I actually quite enjoyed using their 'fake name/real player' rosters (though I did import logos) - I got the proper mix of player types that exist in reality, but without the baggage of thinking Player X just had to be teh #### so I should overdraft or overvalue him in trade. Of course, based on the popularity of roster sets, no doubt I was in the minority.
You're right, but that cuts both ways. Right of publicity law isn't exactly well-developed or set in stone, so I could easily see the decision affirmed, esp. given the first amendment issues at stake.
I think the short answer is that fantasy games use them in a non-news, commercial enterprise. Basically, they are making money off of the players likeness and the stats they generate.
As for companies claiming copyright to their stats, I don't think they as have much protection as they claim.
To my knowledge, baseball doesn't claim any copyright in any statistics. MLB is not pressing the issue based on their own rights, MLBAM is advocating the rights it obtained in a license agreement from each and every individual player through their exclusive negotiating agent MLBPA.
The issue is not about copyright, its about right to publicity. As Jeff mentioned, we have much more detail in the first round of threads on this distinction.
Furthermore, various private commericial enterprises like The Sporting News and Elias have all along claimed copyright for their stats. How can this be, if baseball owns the copyright to a player's statistcs? What would prevent The Sporting News from selling their stats to the fantasy leaguers?
To my knowledge, the raw statistics are not copyrighted nor is there a claim of copyright by any entity. There may be copyright on other expresssion that accompanies a statistical compilation. Various organizations may compile statistics and sell those statistics. That issue is not in front of the court. Elias and TSN could sell the stats with minimal risk.
Now, what both of these entities probably do is that when selling stat compilations, they have the purchaser agree not to disclose or reproduce the statistics. If the purchaser does sell or republish the stats, then they are in breach of their contract with the stats compiler, but that is not a copyright claim.
What is at issue for the fantasy services is whether they are obtaining an improper advantage on the use of the players name (or likeness). As I recall, the issue is being addressed under Missouri state law. There is no current federal right to privacy statute. There are proposed amendments to the Lanham Act, and there are provisions in the Lanham Act for improperly using a person's name to imply advertising or origins of products and services. More than half of the states have Right to Publicity Statutes, and those that do not have common law doctrines born from the Right of Privacy.
The real issues here are not about "copyrighting stats", that is the PR spin by the fantasy providers. The real issues are:
(1) Does the use of the players name create an economic advantage for the fantasy service provider (that is almost assuredly a Yes).
(2) If there is an advantage, is their use of the players names protected by the First Amendment; and
(3) If not protected by the first amendement, will the courts impose a broader "fair use" doctrine to the use of players names (which could be judicial advocacy, but they may carve it out under some theory of surrender, which is common law under the Right of Privacy, the precusor to the Right of Publicity).
Charlie only has FSTA and a group of companies that make public domain material available via database. SABR members... think Proclaim-type searches.
Even they are not 100% in favor of backing the prior ruling and are looking for rewording of it.
The arguments MLBAM/MLBPA are making in regards to publicity should be interesting. Landmark case, to be certain. Can see this going all the way to the Supreme Court.
I'll be interviewing Charlie Weigert shortly after he gets out of court today. Will be interesting to hear what he has to say.
(1) Does the use of the players name create an economic advantage for the fantasy service provider (that is almost assuredly a Yes).
Nobody disputes that.
(2) If there is an advantage, is their use of the players names protected by the First Amendment
Isn't there also the question of how this "use" by fantasy league owners is any different from the "use" by the publishers of The Baseball Register? They give the player's name along with his statistics, they used to put a picture of the player next to those statistics, and they both copyright and charge for their product. How is this any different from what the fantasy league owners are doing? If it's a case of baseball claiming the exclusive right to all this in the name of the players under the guise of "publicity rights," that still begs the question. Why are they going after only the fantasy leagues and not all the other entities that are "using" their product, and have been for nearly 140 years without any fuss having been made about it before the fantasy leagues came along?
and(3) If not protected by the first amendement, will the courts impose a broader "fair use" doctrine to the use of players names (which could be judicial advocacy, but they may carve it out under some theory of surrender, which is common law under the Right of Privacy, the precusor to the Right of Publicity).
If they do, IMO it's simply because the courts and the legislatures have been bought lock, stock and barrel, as usual. In that sense this case is a perfect symptom of the Nanny Corporate State just doing its thing.
What about trivial pursuit? Should they have to get the permission of MLB and the players to ask questions like, "who won the National League MVP award in 2006 after hitting .313 with 58 HRs?"
Baseball is NOT claiming that the stats compiled for fantasy leagues are copyrighted and that CBC is violating some sort of copyright on the stats. What baseball is claiming is that the stats, used in conjunction with player names as is done in fantasy games, are a proxy for the player's IDENTITY - and the player has a right (the "right of publicity") to control the use of his identity in commercial ventures where the intent is to profit from the USE of that identity.
In their unanimous opinion in the Tony Twist case (Doe vs TCI Cablevision, 2003) - which also interpreted the same "right of publicity" statute at issue here - the Missouri Supreme Court stated (quoting legal commentator Mark Lee):
(italics added by me)
From the rest of that opinion, it's pretty clear that the court applied that exact test to the comic books being challenged by Twist. I expect the higher courts will do the same thing here. If the main legal question - is CBC actually using something that can be considered to be a protected use of player identities - is answered "Yes", then I don't see how First Amendment protections arise in this case, since I think that, to any objective observer, CBC's primary intention is to profit from their use of the player stats involved.
At the very least, I think that MLB will win a reversal of the summary judgment in favor of CBC. I don't know that MLB will be granted summary judgment themselves - probably not - which means that we still have a way to go here.
-- MWE
-- MWE
1. I understand that "stats" are not copyrightable, that is, I (or MLB) can't claim to "own" the fact that Earl Webb hit 67 doubles in 1931, because that's a fact and facts aren't copyrightable. But what about, say, Win Shares? Can Win Shares - not the book, but the actual values - be copyrighted by Bill James, since they required some effort to devise and calculate?
2. If the answer to 1. is Yes, Win Shares are copyrightable, does it require any action on James's part to secure said copyright, or are they implicitly copyrighted to him simply by virtue of his calculating and publishing them?
Thanks.
I don't see any difference at all. The encyclopedias are not published by not-for-profits. They're commercial enterprises profiting from the dissemination of the information about the players.
I should add, there is one more issue, which Nieporent addressed and I omitted ---
(4) Does CBC have to honor its covenant not to use the player names and stats after termination of its contract with MLBAM? (CBC agreed they would not use the players names and stats, then used them anyway. The judge said that provision was void due to public policy).
Isn't there also the question of how this "use" by fantasy league owners is any different from the "use" by the publishers of The Baseball Register?
"The Baseball Register" has an unchallenged first amendment right to publish the names and statistics as news. I doubt anyone would challenge that contention.
I used a similar spectrum analogy with JC on the first go around. Consider these extremes:
(1) CBC sells its product as "David Ortiz's Fantasy Baseball"
....
(100) The NY Times reports that David Ortiz hit two home runs.
Item 1 is almost assuredly a violation of the Lanham Act, Right to Publicity Statutes, and probably various consumer laws. Item 100 is almost certainly permissable within First Amendment jurisprudence.
Now consider these ones:
(30) EA Sports uses a David Ortiz cartoon in its video game and they call him David Ortiz.
(40) A fantasy sports provider uses statistics, but ficticious player names and has a board game or internet game.
(50) A fantasy sports provider uses statistics, player names, player pictures and has a board game or internet game.
(60) A fantasy sports provider uses statistics, and the players actual names and has a board game or internet game.
(70) A stats service publishes stats, but has an advertising model where you can "own a player" such that you tie advertising directly to a player name.
(80) NY Times runs a 900 number poll to ask if David Ortiz is the greatest HR hitter.
A questions does exist on where you can draw the line based on 1st Amendment jurisprudence. Please notice that all 100 of these actions per se violate the statutory language. The only question is where the first amendment kicks in. We have good reason to believe it kicks in above 80 based on previous case law. I (and probably David based on the past discussion) believe it kicks in at about 75, and all lower numbers are impermissable.
No one is even really making much of a challenge that they are permitted to do conduct below 30. So the question is between 30-80, where do you draw the line on what the First Amendment protects.
And this is very important. None of this is about copyright. The pictures or cartoons in the above would be subject to copyright. The names and stats are not subject to copyright.
As the Caveman says - "what?" That's legal sophistry at its worst.
So I am allowed to say "Brad Wilkerson is hitting .243, which sucks." But I might have trouble saying "For $39.95 you can own Brad Wilkerson and his .243 batting average." :)
What if you said both?
OK... what about something like Prospectus? By charging for site access - and by going further than just publishing stats -- aren't they too trying to profit from the player's identities? I mean, I suspect very, very few people would purchase a BPro subscription if all they published were theoretical "SB% must be > 75 to be valuable" -- people buy BPro subscriptions because they want to read about whether Mark Teixeira or Jason Giambi is more valuable... whether signing Alfonso Soriano for 7/139, based on the analysis of his statistics and projections of future stats was a good idea... etc.
Or- since I imagine even free providers of leagues like Yahoo! Sports would be covered under this decsion, what about even places like here, where someone does a study on this or that.
In the end - it would seem to me that while MLB/MLBPA may not be claiming copyright to the statistics, how can one say 'use of statistics tied to identities' in fantasy baseball is a no-no, but 'use of statistics tied to identities' in the realm of for-sale analytical books, websites, etc is OK?
I still stand by my claim that this is both stupid and moot - they'll be creating more problems than they solve -- but I fail to see the differene between the creation of site that lets me 'own' player likenesses and track their stats vs. the publication of a book or website that analyzes players based on their stats and somehow furthers my enjoyment, enlightens me about them, etc.
2. If the answer to 1. is Yes, Win Shares are copyrightable, does it require any action on James's part to secure said copyright, or are they implicitly copyrighted to him simply by virtue of his calculating and publishing them?
Thanks.
I would seriously doubt that the Win Share number is subject to copyright under any circumstances. If the WS has not been calculated yet, there is no expression. Even if it has been calculated, you still have a problem with it being copyrightable subject matter.
I don't want to open a can of worms-- and this is intentionally simplified -- but what you would likely seek for the type of protection you describe is a patent grant. Specifically, a patent grant for a method of evaluating baseball players or a grant for a machine used in the evaulation of baseball players. That would prohibit others from using Win Shares.
About twenty years ago, there would be no way in he11 you would get such a grant. Mere algorithms are not subject to patent. However, after fidelity came the rise of software patents and business method patents, and the line between algorithm and machine became much blurrier. I still don't think you would have much of a chance to patent win shares.
If you want IP protection on something like that, what you have to do is not publish, hold them as trade secrets, and get your protection via the licensing agreement to those that you sell. MLBAM did that. That is the last issue. The magistrate judge said as a matter of public policy they could not force others into such a negative covenant.
Lawyers being stupid and moot? That never happens. Has anybody seen my 54 million dollar pants?
MLB (along with just about every other major Sports Enterprise) use dto claim they hada copyright in stats, ad nauseum until enough court losses finally sunk it into their skulls that no they did not. (Actually I wouldn't be suprised if they still think they SHOULD have a copyright interest...)
So now they come up with a new (and probably better) argument- but their problem now is they are essentially seeking the exact same thing that's been denied before, just seeking it on a different purported basis- it's going to be very easy for the courts to view MLB's argument with suspicion- especially because the lawyers for CBC are going to repeatedly claim that this case is NOT about the "right of publicity" it is about MLB's attempt to assert control and ownership over stats and facts- which attempts have been denied many times previously.
I think you're wrong on that, but we'll probably never know. Unless mgl wants to be a test case and try to patent UZR?
Has anybody seen my 54 million dollar pants?
Hey, at least he came down from $65 million.
As I recall, they swapped the first letters of the first and last names, so you could have Bark Mellhorn or Medro Partinez on your roster. If the player's first and last initials were the same, they'd just shift it one, so you could have Doco Drisp.
I see a difference in this case and those of publications like the encyclopedias and the registers and the like - the difference being that the primary purpose of those publications is to disseminate information about the players, not to profit from the use of their identities.
I'm sure MLB would say that, but what does it actually mean? To say the enyclopedia maker's goal is to "disseminate information" seems disingenuous. They're not motivated by the prospect of educating you or performing a public service. They're trying to make money off the idea that you might like to view or use David Wright's stats.
Or to steal a line from the late Sen. Sam Ervin, The Baseball Encyclopedia is not an eleemosynary institution. And how they differ from a fantasy league is beyond me.
That said, BL's list does modify my view a bit, in the sense that I would agree that some of the examples he uses go way beyond what the Baseball Encyclopedia is doing.
OTOH what is it, exactly, that these fantasy leagues in question are doing that baseball is trying to block? Are they publishing board games with players' names and pictures on them? IOW what are they really doing that's different from the encyclopedias, other than being primarily online?
"As the Caveman says - "what?" That's legal sophistry at its worst."
(I'm sorry, I am just not up to speed on proper quotation procedures.)
I don't agree that it is legal sophistry at its worst, I think that's a little harsh. But I know for a fact that the only reason my dad bought a newspaper for YEARS was to read the box scores, and for decades prior to that (at least my dad had a television) that was a HUGE reason why a number of men bought the paper, for baseball and football scores and facts. And the newspapers certainly knew this. Therefore, the newspaper's main reason for printing the baseball players names and statistics was to sell papers and make money, profiting from those players names and statistics.
Even if the fantasy games are more blatantly structured for profits, the black and white portion of this is that those facts previously were used for profit, and have been for 100 years. Ultimately, it is seems indisbutable that the only reason for this suit is that someone somewhere saw where they could make money where none was being made previously.
shrug
They are making money "off" baseball.
Baseball wants : 1- control
2: all profits everywhere.
MLB wants to be the sole provider of stat services for fantasy baseball players- it has become a huge industry and they want to control the whole pie.
That's basically it- every legal effort they've tried in the past has failed- buying the players' right of publicity from the MLBPA is merely their latest stab at it.
Which is why everytime MLB's attys tell the court that "this case is about the right of publicity", CBC's lawyers will tell the court, "no it's not, it's really about MLB's attempt to control non-copyrightable stats and facts"
Whichever side gets the majority of the panel to view this matter from their POV will win.
What if you murdered somebody, and crossed the intersection at the crosswalk. Permissable conduct doesn't matter, its the impermissable conduct that is the problem.
_____
NOTE: I misnumbered my spectrum analogy
40 should be 60
50 should be 40
60 should be 50
Sorry.
_________
Andy,
If they do, IMO it's simply because the courts and the legislatures have been bought lock, stock and barrel, as usual. In that sense this case is a perfect symptom of the Nanny Corporate State just doing its thing.
I mentioned this in the first go around, but I see the reverse. The Right of Publicity is an individual right. Everyone is acting like its big bad MLB against the little guy. Its the individual MLB players versus a multi-million dollar enterprise.
If you erode the right of publicity, the individual doesn't have a win. Instead, you are giving people that can aggregate capital more of your rights.
You wouldn't want BALCO to sell new steroids, and put in the advertising line, "So clean, even Andy REDACTED approves of their use." You wouldn't want your picture on that bottle. That is what the RoPu protects.
Now this gets lost here b/c we think of the multi-millionaires, but what about the Wil Nieves out there. He isn't going to make a ton in MLB. He might be able to get a little money on his name because he made it to MLB. Should Giant Corporation X have a right to free ride on that good will?
This seems to me to be an absurdly overbroad standard. By this standard I would argue that a magazing like People's entire business model is in violation. They provide celebity news. People buy it because they want news on celebrities. We've established that stats aren't part of the legal equation. So where's the distinction?
There's nothing I like more than bushels of idiots learning lessons the hard way.
If they're not even claiming license to the stats, just use of those stats tied to player identities for profit... the proposition gets even easier. So now - instead of a company selling me the ready made roto package, you'd have companies just selling feeds. These feeds then plug into shareware widgets that manage the league -- all of which are now locally deployed (and sure... go ahead and try to hunt down the creators of the widgets. Lots of luck eliminating them.). Maybe I don't even use names in my widget... maybe I assign IDs to players and don't provide anyone with they 'key'... then dozens of other someones post the 'key' all over the net (not like cracking it would be hard).
Try to stop the feed? Go right ahead.
There are many, many places now where I get RSS feeds of boxscores... not too hard to process them into a more db ready feed. Put a stop to that, and I'll just spider the info directly (pull it rather than catch it). So then, you gonna stop anyone from publishing boxscores?
Go right ahead...
Eventually, MLB will become the NHL -- and the only way anyone will know what's going on in baseball will be if they buy a ticket to the game, where you'll have to then sign an NDA on your way to your seat.
I'm dead serious. I really hope MLB/MLBPA wins this thing - I'll suffer through a season or two of non-existent/overpriced/difficult to use fantasy play in exchange for the long term nuking of these idiots.
So this is a right without end, forever, amen?
I see your point, but I think this is part of a broader trend toward broader and stronger rights for the owners of intellectual property, in whatever form. That trend makes me very uncomfortable. The copyright term is already out of control, and giving corporations and individuals greater power to control everything about themselves and their work will stifle creativity and innovation. It's hardly a stretch to think that the MO standard could lead to Chipper Jones suing a publisher for printing a biography that includes his career stats. You can argue that a biography is news/educational/etc., and not a "purely commercial enterprise" or whatever, but that's an incredibly difficult test to apply.
Ditto. I guess the lawyers will love the trend because it creates more lawsuit opportunities.
If MLB wins, it seems like they'd have a shot at going after a lot of Las Vegas sports books. Or they could license them their stats and take a cut of the profits. That would be a very interesting decision on their part. I'm a little surprised that a star boxer or golfer hasn't tried this already.
There is plenty of IP law that needs reformation. But this is not about restricting copyright terms, providing better analysis of patent grants, or the application of fair use criteria to copyrights or trademarks. This is simply a 100 million dollar corporation that wants to use the individuals names without paying a cent for it. We can deal with all the other scenarios as they arise.
It's hardly a stretch to think that the MO standard could lead to Chipper Jones suing a publisher for printing a biography that includes his career stats. You can argue that a biography is news/educational/etc., and not a "purely commercial enterprise" or whatever, but that's an incredibly difficult test to apply.
No, that will not happen or at least not survive any motion practice, and no you don't have to argue or make all these reductions. The issue of whether a biography is protected speech has already been decided. The issue of whether a board game based on someone's life has already been decided. What has not been decided are enterprises that lie between these two endevors.
I've explained that as best I could with the spectrum analogy. If that is not clear enough, then hopefully someone better than me will explain it better. Addressing every hypothetical is not feasible, nor will it promote any greater understanding of the issue. If the conduct lies between what has been decided, I can only offer an opinion, and that opinion is that anything, including but not limited to advertising, games, or any non-journalistic biographical activity, involving the direct ownership, sponsorship, or manipulation of a person's name and likeness would appear to have large legal risk.
Personally, i think New Kids was a bad decision. I think the 900 numbers should not be fair game. A free poll on a news site would be a different story.
Nevertheless, the outer bounds are pretty clear.
If the district court is reversed and Twist endorsed, does Missouri law become the de facto national right of publicity law for any large scale media enterprise that reaches consumers in all 50 states?
No. This decision will affect anyone where MO has jurisdiction over the publisher. MO is pretty lax and was forum shopped by the fantasy sports providers. TN and CA are much more proscriptive. But what it might do is force the federal legislative amendment to create a National Right of Publicity. That will be a shitstorm because the question then comes as to whether it will subsume Elvis laws (publicity for dead people), the non-commercial conduct in CA, and whether it will pre-empt state statutes.
Translation - "just shut up and let us lawyers make money litigating it."
It doesn't. The claim here isn't that the fantasy leagues are making money off the athletes' performances; it's that they are making money off the identities of the players.
IOW, if one was to play a fantasy game in which the both the players names and stats were fictitious, no one would complain. If the stats were real, but matched up to fake player names (like the old Mogul game), that would probably be ok too.
The problem, according to MLBAM, is that when you play a fantasy game, you are trading off the identities of the players -- i.e., you aren't saying "I have a guy who hits .340/.410/620"; you're saying "I have Albert Pujols." Those are two different statements.
Thanks a ton, Maury. Do you happen to have a copy of CBC's appellate brief (in addition to the amicus briefs you mention)?
FWIW, I think this is a decent intellectual exercise albeit not a practical exercise. Practially, the states are not going to allow an unchallenged and lucrative avenue of commerce go unfettered. I would presume that if MLB ever challenged such activity (and I doubt they have the balls to do it), the court would read an exception based on the express license given by the state to the gaming enterprise. Moreover, they would change their laws quick to carve out a gambling exception.
Nevertheless, I did look up Nevada RoPu and gaming law to see how this would be addressed. Interesting, Neveda does expressly carve out some activities to be permissable, such as celebrity impersonators. It does not expressly carve out prospect bets.
The majority of MLBAM's argument lies in the critical distinction that:
(a) Fantasy sports are games; and
(b) Players identities are integral to the game.
I agree, and I think that argument is going to be successful. Yet, MLB supports their argument by talking about "stats not yet existing" (I hope JC reads that, and I did have your back in the lounge FWIW) and prospects. IOW, MLBAM's argument (which I think is correct) would include prospect bets on players as a violation of MO RoPu (and probably be extention any states' RoPu).
Why doesn't/didn't/don't MLB/MLBPA just go after CBC, Sportsline, whomever, etc - the old fashioned way: by building a better product?
They've got SO many built-advantages - why not just build a better FBB system, use the built-in advantages of already owning the teams and player identities, and drive the others either out of business, or, into begging the MLB/MLBPA to license those advantages?
They want more of the "pie" -- fine... I would have more sympathy for them if CBC/Sportsline/etc were eating into a pie they already owned, but they're not, fer chrissakes. NOT. ONE. DAMN. CENT of money I spend on baseball (Extra Innings package, purchase of license garb and memorabilia, game tix, etc) is jeopardized or lost to CBC, et al. In fact, I would actually counter that I probably spend MORE because fantasy play (Were I not a FBB player, I doubt I would have bought the EI package... I would have been contented to watch my Cubs on local cable and the Saturday national game + whatever ESPN offers).
There is absolutely NO upside to this battle for MLB/MLBPA no matter how this turns out.
Expressly journalistic, therefore RoPu doesn't come into play. Right of Privacy is the more effective tort, and the problem arises in most states because Arod is:
(a) A public figure; and
(b) Has surrendered his right to privacy to the stated actions of the paparrazi by public display.
There are still stalking statutes, assault statutues, and if done in some places his RoPa rights that come into play with the paparrazi. (FWIW, I lean toward Andy's view on that subject. I think there should be some broader proscription about paparazzi conduct. Right now, you have people committing assault and don't know where the line is at. The current practice is very dangerous. I'd support some level of sundown statutes or maximum time statutes.)
The only real winners are the lawyers.
They've got SO many built-advantages - why not just build a better FBB system, use the built-in advantages of already owning the teams and player identities, and drive the others either out of business, or, into begging the MLB/MLBPA to license those advantages?
Antitrust.
Or in other words:I have no trouble buying that that's an accurate summation of the current state of the law given that many things have yet to be decided, but when they are decided, I can't see how the logical conclusion is for none of them to be allowed.
Phenom, stop it; we get it.
Ok, we get it, you hate lawyers. Without lawyers we'd all go to heaven in little boats.
Now, let's get back to Backlasher, a lawyer, attempting to provide you with a free education in how the world works. Or, you can continue to adhere to the blinkered, philistine, pig-ignorance we've all come to expect...
How so? I suppose we get into the whole special exemption MLB enjoys, yada, yada... but are you saying that MLB couldn't start their own fantasy baseball in and of itself without jeopardizing their exemption (or - bringing this whole matter up in a roundabout way?)
I mean - I'm being a bit glib by saying "drive the competition out of business"... Even with great overhaul done to MLB.com -- it's still not like that's the only place I go online for baseball.
Utlimately, the competition would need to find a way to blunt MLB's advantages in their offering... I don't think there's anyway the CBCs, Sportslines, etc are driven out of the FBB market - or are we just talking about MLB using those "built-in advantages".
By built-in advantages, I'm mainly thinking of the idea that MLB need not pay itself fees to license logos, etc.... that player likenesses could be made even more prevalent (how about something like allowing me, the FBB owner using MLB's system, to overlay my team logo, etc onto the internet gamefeeds)?
Are you threatening me? How very lawyerly of you.
I'm not bashing lawyers and I certainly enjoy and appreciate the legal discussions (though not an attorney, I actually work for a company that provides content to attorneys)...
I'm more bashing the lunacy of the executives that decided this was a wise course action - the attorneys are just doing their jobs.
Win or lose MLB, they're gonna push the envelope. Perhaps they'll even revisit Motorola through the back door. They're bullies and they're gonna throw their weight around. That's how the world works.
I think its a political conclusion or a forecasting conclusion rather than a per se logical conclusion.
The logical conclusion is that there is too much uncertainty to provide a feasible estimate on success. The forecasting solution is that the courts protect journalists, but most other areas of commerce have higher scrutiny wrt to IP exceptions. This is the subtext on the progression of this jurisprudence.
The political conclusion depends on how you shape it. I fundamentally agree with Yeargghh that IP has grown too broad. Yet, this is a matter of individual rights and privacy from my perspective. I don't want corporations or those with capital to be able to seize the most fundamental thing I own --- my name. I don't want people following me with cameras 24/7. I don't want people to make a fortune off of others just because they can capitilize a project.
If you want to talk about making RoPu a moral right and inalienable or unwaivable, I'm right beside you. If you want RoPu to terminate at death, I am with you. Nevertheless, there is too much to be lost to the individual with an erosion of RoPu.
Clearly you know very little about it. Lawyers apparently act in a vacuum in your world. Not in mine - you know, the one where clients/business people do the driving/envelope pushing, and also the one where legislators make laws that expand/contract legal relationships. Lawyers have some weight, but act within a framework where other people initiate, drive, and decide issues. All lawyers do is make arguments.
As a matter of public policy, the reverse is true because the only way you keep from eroding RoPooh is by eroding the First Amendment.
Sounds like a job description for a typical lawyer.
As you mentioned, a big can of worms that is more thoroughly explored in other threads. Cutting to the chase, I don't think you would find any holding that MLB enjoys any exemption for the relevant market of baseball fantasy services. (There is room to argue about the applicable relevant market, but I'm trying not to make it too complex. There is also room to argue whether MLBAM is sufficiently controlled by MLB, but I think that is an easy win.)
I mean - I'm being a bit glib by saying "drive the competition out of business"
I understand. Those actions would be per se illegal, and I was not trying to be overly literal in reading your comment.
Nevertheless, what you have described is a vertical monopoly in a multi-billion dollar industry. IMHO, the only reason the "small licenses" are in MLBAM's portfolio is to prevent a current claim of antitrust under the existing scheme. I think they had rather just deal with the ESPNs, and drive everyone into an oliarchy. Its more profit maximizing.
And since I agree with this, I wont' engage Phenom unless he's got something substantive to say.
If you want to talk about making RoPu a moral right and inalienable or unwaivable, I'm right beside you. If you want RoPu to terminate at death, I am with you. Nevertheless, there is too much to be lost to the individual with an erosion of RoPu.
I'm with you here BL. I think any form of intangible property really should have a lifetime limit at most. Especially copyright and patents - the longer the term, the less and less such a monopoly encourages progress in the useful arts and sciences. Wasn't there a bill pending not too long ago proposing to make the copyright term infinity minus 1 day?
Fair enough. The lawyers are just really just intellectual prostitutes rendering their services to MLB.
Maybe, just maybe, all English Barristers do is make arguments, and they are they only lawyers anywhere, where that is the beginning or end of their job description
Like billable hours.
If they do, IMO it's simply because the courts and the legislatures have been bought lock, stock and barrel, as usual. In that sense this case is a perfect symptom of the Nanny Corporate State just doing its thing.
I mentioned this in the first go around, but I see the reverse. The Right of Publicity is an individual right. Everyone is acting like its big bad MLB against the little guy. Its the individual MLB players versus a multi-million dollar enterprise.
If you erode the right of publicity, the individual doesn't have a win. Instead, you are giving people that can aggregate capital more of your rights.
That trend makes me very uncomfortable. The copyright term is already out of control, and giving corporations and individuals greater power to control everything about themselves and their work will stifle creativity and innovation.
There is plenty of IP law that needs reformation. But this is not about restricting copyright terms, providing better analysis of patent grants, or the application of fair use criteria to copyrights or trademarks. This is simply a 100 million dollar corporation that wants to use the individuals names without paying a cent for it. We can deal with all the other scenarios as they arise.
Well, one scenario might be when it's not a 100 million dollar corporation, but a few geeks who just want to organize a fantasy league and now face mountains of paperwork and licensing fees.
And my line about a "corporate nanny state" relates to this---the sheer amount of time and money that you have to spend to navigate all of these newly-minted restrictions, regulations and fees is going to deter pretty much anyone who doesn't have a 100 million dollar corporation behind him. And for what end? So that 750 Melky Cabreras and their agents get a few more bucks? At some point you have to say: Enough. If Melky Cabrera wants to make fantasy league money from his name, let him produce his own fantasy league or sell his endorsement of an existing one.
My IE was down for the last hour or so, but this is a point I was about to make then:
Ultimately, it is seems indisbutable that the only reason for this suit is that someone somewhere saw where they could make money where none was being made previously.
In the 1970s and 1980s a guy named Robert Opie began to produce and sell first class reprints of World Series programs from 1894 to 1976. They were advertised in TSN and other outlets for years, got rave reviews from everyone, were sold in the Hall of Fame gift shop, and generally can be said to have made a small but significant improvement to the kharma of the baseball world. I should add that none of the original programs were ever copyrighted by anyone in the first place---not by the teams, not by MLB, and not by the people who produced or printed them. Which makes sense, since they were the embodiment of ephemera, to be used for a day and then discarded or at most saved as a souvenir.
Opie made one program for every Series from 1903 to 1956 without any complaint from baseball, and then just when he was about to go through again and produce the other team's program for each year, all of a sudden they forced him to shut down all future production. I bought lots of his remaining stock for my store (they let him do this) and asked him what MLB's reasoning was.
And it boiled down to this: Because they could do it. They had a tribe of lawyers on retainer, and Robert Opie---who needless to say wasn't anyone's 100 million dollar corporation---couldn't afford to contest their arbitrary fiat. And I repeat that Mr. Opie had been freely and openly operating for nearly two decades, and every single program that he had reprinted was not thought important enough to copyright in the first place.
Well, in this context, the lawyers involved are just making arguments. And, even lobbyists attempting to move a policy one way or another, are simply making arguments to do so. I'll set to one side lobbying based on personal relationships (which is actually minor compared to real persuasion in my experience).
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the right of Publicity."
But this is different this is Albert Pujols has 15 homeruns. There is nothing fictious about it. Even the video games that come out are based upon the numbers that these people put up. The numbers which can be culled from any newspaper. Imagine if you make a game where you draft actors and the value of your team is based upon the amount of money that the actors film grosses that year, would that be a violation of their right of publicity?
From a laymans perspective it really doesn't seem that mlb has much of a case. If the stats were kept behind close doors that would be one thing, but the stats that are attached to the players names are public record so it doesn't seem like they have much of a legitimate argument.
I understand why there is a right to publicity, but you're gliding over the differences between the stuff "we" should fear, and what's at stake here. Of course I understand why I can't block David Ortiz' driveway to take his picture, or why I can't call my game "David Ortiz Fantasy Sports" and give the impression to people that he's affiliated with it or approves of it. But if I make a game that utilizes the fact that David Ortiz hit .300 with 40 HR, what is the interest at stake? .300 and 40 HR may be the byproducts of his labor in a sense, but they're abstract concepts; obviously David Ortiz does not in fact own ".300" or "40 HR." I haven't restricted David Ortiz' ability to do anything he might otherwise want to do. I'm not making any statement about David Ortiz the man, good, bad or indifferent. I don't see how David Ortiz is affected any more by this than the "Ortiz hits 40th HR" newspaper story that we all agree is perfectly fine.
It might save all of us a lot of time and bandwidth.
I have two problems with MLB on this matter. Most of my objections are based on public policy, but I also don't care for the schoolyard bully approach of MLB and their lawyers.
You lawyers sure are thin-skinned with all your "Ignore" smack.
The argument is essentially like if you were selling David Ortiz T-Shirts, rather than stats. You're profiting off of his identity.
Yes, and in MLBAM's argument, you are buying David Ortiz before he has .300 and 40 HR.
And yes, HSX does/did the exact thing you describe. A game where you buy prospects on film revenues or bonds on actors commercialization, and then trade them at market for fictional dollars. The fictional dollars would lead to a prize. This is completely analogous to the current situation and if MLB is successful, that activity would also be pretty much a slam dunk RoPu violation.
Although he is much closer to the news side of things and possibly critically distinguishable regardless of the outcome, I imagine Forman is watching this with baited breath. This ruling will either give him great comfort or additional fear with his advertising model.
300 and 40 HR may be the byproducts of his labor in a sense, but they're abstract concepts; obviously David Ortiz does not in fact own ".300" or "40 HR."
Again, its not his output that is the critical difference (although this could be argued). Its the fact that you can own David Ortiz.
In MLBAM's argument, they point out that people choose players on criteria other than stats such as affiliation to home teams, clutch ability,... and hustle (I sh1t you not, this is in the brief along with a pretty good infield selection for a fantasy team-- I guarantee you a saberist drafted the MLBAM brief).
They had a tribe of lawyers on retainer
Andy,
Keep in mind in this case:
(a) CDM agreed not to do what they went out and did.
(b) They had a tribe of lawyers on retainer and probably in house.
(c) They initiated the lawsuit.
A group of people getting together for a fantasy league is not impacted by most of this MO law (they could be in CA law), and I doubt MLBAM would chase them.
The argument is essentially like if you were selling David Ortiz T-Shirts, rather than stats. You're profiting off of his identity.
But again, how is a fantasy league profiting off of David Ortiz's "identity," as opposed to his statistics? And how on earth does that compare to selling a David Ortiz T-shirt? Merely asserting such a contrived analogy isn't enough. This isn't even apples and oranges; it's more like apples and and french horns.
OK... maybe CBC should call Ron Shandler or Alex Patten as an expert witness because I don't know ANYONE that uses these criteria in their drafts.
On the other hand, I've overpaid for Todd Helton on auction day and overpaid for him on the trade market simply because I liked my team name (Helton Skelters) rather the alternate (Heltonless Skelters).... so maybe they do have a point.
You are making a game based on his prospect of doing those things. You are selling ownership of David Ortiz.
.300 and 40 HR may be the byproducts of his labor in a sense, but they're abstract concepts; obviously David Ortiz does not in fact own ".300" or "40 HR." I haven't restricted David Ortiz' ability to do anything he might otherwise want to do.
That is not the test. The test is whether you have restricted income from him based on the use of his name. The legal criteria is that if you made money off it, it is money that could otherwise inure to him.
I'm not making any statement about David Ortiz the man, good, bad or indifferent.
That would be covered with defamation law.
I don't see how David Ortiz is affected any more by this than the "Ortiz hits 40th HR" newspaper story that we all agree is perfectly fine.
He may or may not be (I think he would be, but it is irrelevant at this point). In both cases, you have made money off his name. In the newspaper instance, that is allowable pursuant to the First Amendment. In the game instance, we are going to see if that is allowable under teh first amendment. Right now, it would not be allowable with a board game that included his biography and picture, or probably any game where you did use him as a player piece in any way based on his past performance.
Whether using him as a game piece in a prospective performance is what is at issue.
As long as those geeks are not in it primarily for commercial gain, they wouldn't have to worry about licensing; RoPu laws wouldn't even reach those situations, because there's no gain to be had.
-- MWE
On the other hand, I've overpaid for Todd Helton on auction day and overpaid for him on the trade market simply because I liked my team name (Helton Skelters) rather the alternate (Heltonless Skelters).... so maybe they do have a point.
CBC's own expert admits there is no market for the game outside of the players names. If that were a question, then the SJ would have to be denied because this is a material fact. CBC rolls over on the point as to whether there is a market beyond the player name.
See Backlasher's Post 90 (among others). Basically, MLBAM reasons, no one would be interested in fantasy sports if it wasn't for the concept that you "own" the players. If the fantasy leagues used "Player X," "Pitcher Z," and the like, no one would play. It's only because "Player X" is David Ortiz that anyone cares. You're doing business off his identity, not the stats.
Hell, Ortiz doesn't even have to play -- he could spend the entire season on the DL, yet fantasy operators would still have sold the ability to "own" him regardless of how he performs.
Just as Topps needs to pay for the right to put player pictures on the cards they issue, MLBAM reasons that fantasy league operators need to pay for the right to attach player identities to the stats they use.
Are you saying that MLB (or other sports leagues) would allow use of player identities as long as there is no commercial gain?
Here's a hypothetical. Let's say I publish a table top baseball game based on players stats. Am I OK to distribute it publicly as long as I don't charge for it?
OK, interesting...
I think I would disagree with the CBC's expert on conceding this point (it may well be true for CBC, but to the larger issue). I guess we move away from this whole discussion, but I'm just thinking of, for example, OOTP leagues, which actually trend more towards fictional players (they're not using MLB stats, though). I also worked for STATS, Inc once upon a time - and they used to (and I think still do) run fantasy leagues using 'classic' players via simulations.
I guess here we get into the real heart of whether the player's identity is the 'lynchpin' to Fantasy baseball or not. Maybe I'm very much in the minority, but I would be PERFECTLY happy to play FBB without "Albert Pujols", "John Smoltz", etc. What makes the use of 'real' players so necessary is that with a league of "Joe Shaltbotnicks" -- I don't have so many places to go to get info on the player. I don't have a 'rotoworld.com'. I don't have a Shandler or Patten to write books forcasting players. I wouldn't have a {muted}Baseball Tonight to get highlights of my players. I wouldn't have a Spring Training to analyze their performance.... and so on.
I suppose I'm making MLBAM's argument: See! The player's identities ARE critical... I would counter-argue, though, it's not the player's identities per se --- it's the wealth of information, avenues, and updates about those players that I buy. I would readily play in a league of 'Joe Shaltbotniks' if only I would have the same amount of data, analysis, and information to digest.
BTW -- I know it has no bearing on the legal argument, but I just want to again point out that FBB in and of itself enhances MLB's properties... and strictly from the commercial standpoint, I still believe MLB should have taken another approach than what they've done.
What's the best place to find these? I haven't had much luck...
And if the problem is that I "claim to own" David Ortiz, isn't that just ridiculous on its face? No one is going to be confused and believe that I in fact have David Ortiz signed to a baseball contract.
And if it boils down to "we've been ruling for 250 years that newspapers have rights, and it therefore follows that no one else does"... that seems to fail the common-sense test as well.
There are distinctions, but I dunno if there are differences.
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