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Primate Studies
— Where BTF's Members Investigate the Grand Old Game
— Where BTF's Members Investigate the Grand Old Game
Thursday, March 29, 2001
Unexpected Reader Mail
April 4, 2001
Yesterday I spoke with Baseball Prospectus' Keith Law on the phone at length about this issue. Since we both acknowledge that it is in the best interests of the parties, and of the visitors to both sites, to resolve this matter amicably, we have agreed to discuss the matter further.
As needed, I will provide more information. In any event, I appreciate all the input (both pro and con) submitted about this news note.
At this point I don't want to further divert your attention from a far more important subject: baseball. For that reason, I suggest people do the same thing The Primer Staff and the BP crew need to do--get back to baseball.
I hope you enjoy the upcoming season.
Jim Furtado
March 29, 2001
Yesterday afternoon, we received a Federal Express delivery containing a letter from the Baseball Prospectus Group, LLC signed by Keith Law and including the names of Gary Huckabay, Chris Kahrl and Keith Scherer, Esq. In this letter (full text below), the Baseball Prospectus LLC charge that our "use of the name, www.baseballprimer.com for the display of remarkably similar, if not identical, content is not only a violation of both federal and state trademark and trade name law, but also rises to the level of copyright infringement and unfair competition."
They continue, instructing us to "cease and desist any and all use of the URL, www.baseballprimer.com and any of the images or written content that you have wrongfully copied and are reproducing on your Web-site, within 48 hours of the receipt of this letter."
We have not and will not infringe on the Baseball Prospectus copyright. We have not presented any of their material as our own and have fully cited any references to their methods that we have made. We feel "Baseball Primer" in no way copies or dilutes the "Baseball Prospectus" name, and we consider their claims frivolous and without merit. We are consulting with a variety of intellectual property and trademark experts and we will take appropriate action, as advised by legal counsel.
We also do not feel our actions have been unfairly competitive with Baseball Prospectus. In the past year, we have both online and in person frequently encouraged others to visit their site and purchase their books. Since we'd prefer a more amicable and collegial relationship, we hope they will reconsider their actions.
Seeing as we will need to devote time and energy defending our right to use this name (a name we spent many months considering and choosing), we apologize if we are not able to maintain our normal level of baseball content and analysis over the next week or two. At the very latest, we will be back up to top speed some time after opening day.
Sincerely,
Sean Forman and Jim Furtado
Text of the letter in PDF format (704 KB) may take a minute or two
Text of the letter in plain text format (3 KB)
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baseballprimer. It's obviously not the same URL as baseballprospectus.
The abbreviation might be the same (BP), but in an internet world where there
are 17 million websites, how can that be avoided?
Obviously there will be some degree of statistical duplication between the two sites.
So many new relatively new statistics like OPS, equivalent average and the like
are so widely accepted in the sabermetric community (just like RBIs and
ERA are accepted in the "established" baseball community) that duplication is bound to happen.
Is there a specific area of duplication that baseballprospectus is objecting to?
More importantly, from the standpoint of a reader such as myself, the content on your website
is so much more in depth than what is presented at baseballprospectus. Without
knowing more about their legal action (perhaps it is just an April Fool's joke but if
it is, it's in poor taste), it seems like baseballprospectus is expressing
some degree of jealousy. Rather than go forward with such legal action, baseball
prospectus should try to improve the quality of its site.
If the folks at baseballprospectus really considered the advancement of baseball
knowledge as important as they'd like us to believe, then they wouldn't be
trying to remove one of the best baseball websites currently available.
Sincerely,
Bruce Markusen
Cooperstown, NY
I enjoy your site and was just about to order a copy of this years Baseball Pospectus when I read http://www.baseballprimer.com/articles/news_legal.shtml. I have now reconsided. I hope that the article is some joke gone bad, or somehow gets cleared up, but if it is true that you are taking legal action against baseballprimer.com I will not by any of your products and will encourage others not to as well. Baseball analysis can only benefit from more discussion, and I think the Internet is big enough for both baseballprimer and baseballprospectus.
What is with the "you are hereby instructed" crap ? I always thought that if you feel hard done by, you first talk things out (as others have commented).
And can they point out any of the "images or written content you have wrongfully copied". I haven't seen any.
I agree with Dean - this is all about power and trying to scare away potential competition.
I have been a reader of your website for two years now and I have purchased each of your last two books. I have enjoyed your work, and quietly "rooted" for you in your cute little feud with the BBBA folks. Today I read Sean Forman's web log and find that you are threatening them with a lawsuit, apparently because they have opened a baseball site that is called "Baseball P_____." Of course, since most baseball sites will start with the word baseball, you are apparently arguing that only you may operate a baseball site where the second word starts with the letter "P," and by implication that there may be only twenty-six baseball content sites with their own domain names on the web.
I hope there is more to this than your letter posted on Sean's web log indicates. If so, please print an article explaining yourselves post haste. If not, I hope you retract your threats and apologize. This is already a black mark against you in my book, and the longer you go without retracting or explaining, the less I as a formerly loyal fan think of you.
Maybe to win the "alphabetical" war, they should change their name to "B******* Praspectus".
By the way, I'm so upset by their behaviour that I'll throw in a gratuitous remark (which as many of you may know is unusual for me): I hate EqA - it's a meaningless measure that doesn't refer to or attempt to measure anything real in baseball, unlike RC or XR or OWPCT or WINS ABOVE REPLACEMENT.
I'm sure your lawyers are going to tell you the same thing, though, but if you want a random guy-on-the-street advice, here: find a totally unrelated domain name and re-open shop, and chalk this up to experience.
Seriously though, how can anyone say the two sites have names that are so close as to infringe on a copyright? Brandon, if you want to go the other site, type in the additional R and O, because if you ever been to any site like baseballhalloffame.org or any other site that starts with baseball, autocomplete won't give you baseballprimer until you get to baseballp. Typing two letters is not a lot to base a lawsuit on.
Scott you hit the nail on the head. If Brandon is correct, we really are limited to 26 sites in the stathead community.
Sean, maybe you shouldn't have written that PAP article after all . . .
If Sammy Sosa hits a homerun, does only one media source have the right to report it or comment on it or analyse his swing ? If one newspaper first reports that Sammy Sosa hit a homerun over the RF wall and another newspaper writes that Sammy Sosa smashed a homerun over the RF wall, is that identical content which is classed as Trademark infringement ?
Bill James analysed Philadelphia Phillies trades from 1974-1984 in his 85 Abstract and I'm sure he wasn't the first person to publish an analysis of a trade. So it's not like a guy came up with a completely novel idea - hey let's have a column where we analyse trades and other transactions. GIVE ME A BREAK.
Bring on the ORACLE!!!
As a lawyer, I find it interesting that the Baseball Prospectus people wrote their "cease and decist" letter themselves rather than hire actual legal counsel (is Keith Law an attorney, or is he just using the last name as a crededntial?). I would think that if they honestly thought that their rights were being infringed they would retain counsel rather than consult a lawyer friend or find a form letter with which to threaten you. That's what bullies do.
That aside, I tend to agree with the previous posts from lawyers or those who play them on TV. I'm not IP expert, but I am having trouble seeing what of theirs is being ripped off. The Washington Post and New York Times seem to be able to report on the same stuff without getting into legal battles. They even both have sections and departments (Op Ed., Sports, Business) with identical names and subject matter. This is where that would seem to fall.
That aside too, this is really regretable. Following on my the letter I wrote in the wake of the PAP aritcle, my sincere hope is that the Prospectus and the Primer can coexist like scholars in the same field, each making the other's work better, each advancing our understanding of baseball, all of which leads to a greater enjoyment of the game.
Craig Calcaterra
I can't speak for Sean and Jim, but it seems that "Primer" makes sense, because the site can be viewed (at least in part) as a kind of introduction to the "sabrmetric" world for baseball fans who aren't familiar with baseball analysis. That would make it a type of electronic "Primer" based on the following definitions I found:
a) an elementary textbook b) small book containing basic facts about a subject
The fact that the first 2 letters are the same means something only if you assume sinister motives. So Sean and Jim were supposed to be sitting there at night looking at all the pr- words in the dictionary to take some sort of revenge upon BPROS****** ? COME ON !!!
2 letters is not enough to prove infringement, is it ? The sites look different. They operate differently. There are no BLOGS on that other site and they don't post anything like the number of links to news articles that "Primer" does and they don't invite discussion about them.
It's not a slam dunk for the Prospectus folks, certainly, but the Primer argument is not a clear-cut winner, either. Since it's apparent that a significant part of the Prospectus claim revolves around the names of the sites, ESPN/CNN comparisons aren't particularly helpful.
Hopefully this can be resolved quickly and fairly to both sides, with a minimal amount of acrimony, since both sites have a lot to offer. I don't think all the people jumping in here to proclaim the evil of one side or the other is a very constructive approach, however.
One can understand Law to be a practical application of ethics. The 2 are never entirely separate.
If one company threatens another with a lawsuit, it becomes a legal issue and by extention an ethical one as well. Maybe the questions "is Primer legally in the wrong?" and "is Primer ethically in the wrong?" are different ones, but in a perfect world what is legally wrong should also be ethically wrong.
I'm not a legal expert by any stretch of the imagination, but in my humble opinion, it is necessary to first discuss if Primer did anything ethically wrong. And if so, what is the just punishment. The legal aspects will be ironed out between the 2 parties before or during a trial.
Since every human being has a right (and is presumably qualified) to discuss ethics, I would like to consider this situation from an ethical perspective (as I have been doing all along).
I think that based on what the letter states (no other justification for the suit has so far been offered) there is no basis for arguing that "Primer" did anything ETHICALLY wrong. Feel free to disagree and provide specifics to support your views. I also believe that "BPROS******" has threatened legal action where none seems warranted, and that this in itself is a hostile act which I consider to be unethical. I am angry not only because of their (IMO - unwarranted) attack, but also because they absolutely did not make any attempt to deal with the issue in a more amicable manner. That to me does not constitute gentlemanly behaviour, even though is is not illegal.
Speaking more generally, I ask any lawyers reading this if there is any law against threatening "unwarranted" legal action. I hope there is, because that is precisely what I think has happened here. Of course I understand that "unwarranted" would have to be proven in court.
type of editorials and opinions posted on B-Prospectus' site, and it's really hard to imagine
that the letter isn't an April Fool's joke. However, I suppose B-Primer has enough reason
to believe it is genuine. Let me preface my next comment by stating that I do regularly read both
sites and couldn't care less what domain name either one uses. What I question,
is the motive for publishing the letter on the B-Primer site and the all of the largely supportive page of
reader comments. Is this to portray this site as "the Good Guys" and B-Prospectus as
"the Bad Guys"? It sure does seem that way. Why wouldn't the editors of this site keep the matter
private until a resolution or final decision has been made? It would seem to me that the
only reason would be to generate favorable public opinion, or (a bit more cynically) to
generate unfavorable public opinion towards B-Prospectus. I am very curious as to why they felt this matter needed a public forum.
Comments are posted to the page automatically. The site adminstrator
doesn't determine which comments go up and which don't, they all go
up. Only comments that violate posting policies on the site are
removed.
So Kurt, I just wanted to clarify this particular point about how the
site runs, as I wasn't sure (from your comment) that you understood
that portion of the site. Thanks.
All I can say is that if one day when I loaded up this site, the words "we are no longer able to operate under this IP address...we apologize for the inconvenience" appeared, I would certainly be asking myself what had gone wrong.
This "attack" as I feel justified in calling it affects the readership of this web-site and I for one do not see a problem with allowing the readership to express its collective opinion on the matter.
I used to be among the readership of that web-site and would still be if I hadn't learned of their actions. I have no reason to believe that a hoax has been perpetrated and I believe the letter published here is genuine. I am offended by their actions and I personally no longer wish to visit their site or buy their merchandise.
Thanks for the very interesting information.
the heck out of him). I hope this is resolved quickly and with a minimum
of acrimony. There's no reason why anyone on either the Prospectus team
or the Primer team should feel threatened by the presence of the other
group - it's HEALTHY, and good for sabrmetrics as a whole, to have competing
viewpoints in the field.
-- MWE
In response to Robert Dudek, I don't have a problem with general comments about ethics, like "Shouldn't they have tried to work this out before sending a letter like that?" It's people saying "Oh, this is stupid, they don't have a case" that I was specifically criticizing. And whether the case is "unwarranted," as you term it, is a function of legal issues. Defending trademarks is a complex matter, not to be addressed with glib dismissals.
In response to Ted, I didn't mean to criticize general legal observations. I'm not an IP specialist, but I have some familiarity with some of the major cybersquatting-related cases, and I can spot some potential issues here also. (The autocomplete issue struck me as soon as I experienced it, long before this letter was sent.) But there were several comments posted, either here or in the parallel discussion in Sean's blog, that seemed to approach the arena of legal advice, and it didn't seem very sensible for untrained nonlawyers or uninformed lawyers to be handing out legal opinions. After all, for all any of us know, there's evidence out there that the name was chosen deliberately to confuse, or evidence that the name was chosen 5 years ago, before the Prospectus website existed. Either is unlikely, but yaneverknow.
But my real point is that this entire discussion seems unproductive. It will be resolved amicably or through the courts, but either way, it will be resolved by the Primer and Prospectus people, not any of us posting on the web.
site is not Galliard. It is Eras Demi or Bold, I don't recall exactly which.
I'm not a typographer, so I
can't speak to any similarities or differences that these fonts have.
I use Fireworks for all of my graphics needs, and after checking I found
that Galliard isn't available in that program. I have always
had a strong affinity for the Eras fonts. BigBadbaseball.com, IowaFarmReport.com,
and Big Bad Baseball Plus all use Eras fonts. Excepting that both
are sans serif fonts, a quick look at the
a's, e's, p's and b's will show that the logos are quite different.
As to some of the other more serious questions,
Jim Furtado is working on some replies to the questions asked here, so
I'll defer to that note when it is posted either later today, tomorrow or
Tuesday. I hope you will find his answers satisfactory.
On an unrelated note, watch out for the Red Sox. They've been
pretty hot lately and will be getting Manny back just in time. I also
asked the congregation to pray for Nomar today, so I'm hoping for good
news on that front as well.
You're absolutely right that the fonts look extremely similar, if not identical. I'm not sure that the LL Bean example is useful; it's hard to imagine an innocent explanation for lllbean, while Baseball Primer is not nearly as egregious to the point where bad faith is the only explanation. The finding in that matter was that "lllbean" was a common misspelling of llbean; that doesn't apply here.
As for the people who insist that the BP1 people should have worked it out with the BP2 people instead of sending this letter, (1) we don't know what the BP1 people did before sending the letter, and (2) if the BP1 people had called up and said "Please stop using the name BP2," do you think that Sean/Jim would have immediately said "Oh, sorry. Okay, we'll change our name"?
And, as a fellow traveller of Ted's, I agree that posting the letter and inviting people to send protests to BP wasn't the most productive approach.
llbean-lllbean
Please. If people are so concerned about autocomplete, why don't they just use a bookmark. And font types? Is the Primer allowed to use English as it's language? Or is that an infringement as well?
Also, I don't remeber seeing any requests to bad mouth Prospectus. The letter has been presented as news. If the Prospectus people have been embarassed by this don't blame Primer.
trademark against future infringement,
What's with the copyright infringement claim? The letter instructs
Primer to remove, among other things, "written content that you have
wrongfully copied" and makes references to "identical content."
There is one article that has material copied from
Prospectus (the book), but that was well within the guidelines of fair
use.
Whether Prospectus has a trademark infringement case or not
(insert I-am-not-a-lawyer disclaimer here), they do not have a
copyright infringement case. So for me, "just doing what they had
to after being put in an awkward position" doesn't explain all their
actions.
I spent some time on the Cornell law Web site, where there is a
copy of the US Code. Section 1125(d) of Title 15 deals with
cyberpiracy, specifically with registration of domain names similar
to registered trademarks. Some relevant sections:
(begin citation)
A person shall be liable in a civil action by the owner of a mark,
including a personal name which is protected as a mark under this
section, if, without regard to the goods or services of the parties,
that person -
(i) has a bad faith intent to profit from that mark, including
a personal name which is protected as a mark under this section;
and
(ii) registers, traffics in, or uses a domain name that -
(I) in the case of a mark that is distinctive at the time of
registration of the domain name, is identical or confusingly
similar to that mark;
(snip)
In determining whether a person has a bad faith intent described
under subparagraph (A), a court may consider factors such as, but
not limited to -
(snip)
(V) the person's intent to divert consumers from the mark owner's
online location to a site accessible under the domain name that
could harm the goodwill represented by the mark, either for
commercial gain or with the intent to tarnish or disparage the mark,
by creating a likelihood of confusion as to the source, sponsorship,
affiliation, or endorsement of the site;
(snip)
Bad faith intent described under subparagraph (A) shall not be found
in any case in which the court determines that the person believed
and had reasonable grounds to believe that the use of the domain
name was a fair use or otherwise lawful.
(end citation)
There are two things that would have to be proved here before
Baseball Prospectus could carry the argument:
1. Is "baseballprimer.com" confusingly similar to
"baseballprospectus.com"?
2. If so, did Sean and Jim have a "bad faith intention" to profit
from that mark?
I have no doubt that Sean and Jim believed they acted in good
faith when registering the domain name, but the question is whether
a court will find that belief to have been reasonable. Like David
and Ted, I'm not certain the issue is cut and dried. I think "bad
faith" will be very difficult to prove, but after reading the
sections of the code I've quoted above it's not beyond the realm of
possibility.
-- MWE
I don't think anything is to be gained by questioning the motives
or the sincerity of any of the players in this action - not Sean
and Jim, not the Prospectus authors, and especially not the posters
on this thread.
-- MWE
I visit both sites. I like both, but neither are indispensable as harsh as that may sound. If I were the "baseball primer" people, I would take the letter from the "bsaeball prospectus" people as a valuable piece of information. I would not WANT my site confused in any way with the other site and would be very thankful that someone pointed out how easily the two could be confused.
Forget the perceived pettiness of the "baseball prospectus" people; focusing on it does not advance the field at all.
If it helps smooth the waters, I'd suggest dumping the transaction column and the fantasy stuff. The transaction comments, regardless of the site, are nothing more than page filler. The fantasy stuff is overdone everywhere and has become the black eye for sabremetrics. I've done roto-ball for 10 years and I haven't read any fantasy articles for the last six or seven years. The value just isn't there. The most useful article I've read recently that has helped in fantasy ball was Voros' DIPS stuff.
Counterpoints welcomed.
Well...since Tango brought it up...
I think it was Chief.
Well, duh. Of course it was Chief.
After all, HIS FATHER IS THE DISTRICT ATTORNEY!
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