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Wednesday, May 07, 2014

Awful Announcing: Lucia: MLB is Urging iTunes to Pull Team-Related Podcasts (UPDATE)

In one of the more disappointing things we’ve seen out of them lately, MLB is reportedly requesting that iTunes pull several team-related podcasts from their service. Among the affected podcasts are Twins podcast Gleeman and the Geek (hosted by Aaron Gleeman of NBC Sports), Pirates podcast Pirates Prospects, a second Twins podcast in Talk to Contact, Mets podcast Mets Musings, Cubs podcast Bleacher Nation, and Yankees podcast It’s About the Yankees, Stupid, among many others.

Tweets from Aaron Gleeman:

- “Gleeman and The Geek” was removed from iTunes after 144 episodes because we’re told MLB requested several team-related podcasts be removed
- Hopefully it’ll get resolved, but it’s scary that MLB can just tell iTunes to remove a three-year-old show with 15,000 listeners an episode.
- OK, so MLB won’t get back to us and iTunes won’t get back to us. Not sure what to do other than make a big stink about it. So let’s do that.

DJS and the Infinite Sadness Posted: May 07, 2014 at 01:59 PM | 55 comment(s) Login to Bookmark
  Tags: clownshoes, mindblowingidiocy, mlb, mlbam

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   1. Scott Lange Posted: May 07, 2014 at 02:26 PM (#4702308)
I just submitted this myself. What the hell is MLB thinking?
   2. Jim (jimmuscomp) Posted: May 07, 2014 at 02:28 PM (#4702312)
Wow. That's insane.
   3. Infinite Joost (Voxter) Posted: May 07, 2014 at 02:51 PM (#4702350)
Jesus, why? This is free ####### publicity.
   4. Graham & the 15-win "ARod Vortex of suck" Posted: May 07, 2014 at 02:52 PM (#4702352)
I'm not a Twins fan, but I listen to Gleeman and the Geek every week. Gleeman is very funny, and both hosts (and the various guest hosts) are entertaining and informative. (Actually, Mike Emeigh recommended the podcast to me in a BBTF thread about a year ago. Thanks, Mike!) I just checked Stitcher a few minutes ago, and Gleeman and the Geek is still available via that outlet. Unfortunately, I don't know much about the other podcasts listed in the article, but it's disappointing to hear that MLB is pulling them off of iTunes.

Legally speaking, how much power does MLB have in this area? I understand that they can request that iTunes pull the podcast, and iTunes can pull podcasts at will. However, can MLB tell the podcasters to stop recording the podcast period? If the hosts aren't slandering the team or MLB, can MLB argue that the hosts don't have a right to use the team name at all? Where would this power stop? Could MLB shut down an informal fan club that is not sponsored by a team? I apologize for the basic questions; I'm obviously not a lawyer.
   5. Bitter Mouse Posted: May 07, 2014 at 02:55 PM (#4702354)
Yeah I podcast Gleeman and the Geek (hey two listeners in this thread!) and enjoy it a great deal. And yes dumb by MLB.
   6. McCoy Posted: May 07, 2014 at 02:59 PM (#4702358)
What the hell is MLB thinking?

That they want to control the flow of information about their product? That they want those 15,000 followers to follow their podcasts and be able to show their advertisers they have 15,000 more followers?
   7. Fourth True Outcome Posted: May 07, 2014 at 03:00 PM (#4702361)
Jesus, why? This is free ####### publicity.

It is remarkable to me how dedicated MLB remains to snuffing out free internet publicity. It's especially boneheaded given how well the NBA uses such media to bolster its brand. It remains crazy how much baseball seems to want to shoot itself in the foot on issues like this.
   8. Nasty Nate Posted: May 07, 2014 at 03:03 PM (#4702368)
The update has MLBAM's response:

"As we have done in the past, yesterday we notified Apple (see below) about certain podcasts on the iTunes Store whose titles and/or thumbnails include infringing uses of trademarks of Major League Baseball and certain Clubs. And, as we have done in the past, we asked Apple to have these trademarks removed from the podcast titles and thumbnails. Although we did not ask for or seek to have any podcast removed from the Store, it has come to our attention that Apple removed them. Given our many years of experience in notifying Apple about trademark issues on the Store, we trust that removing the podcasts was an oversight, and ask that you please look into this matter as soon as possible."
   9. Crispix reaches boiling point with lackluster play Posted: May 07, 2014 at 03:05 PM (#4702370)
Edit: I deleted this post after seeing #8. Did not consider that the problem was corporate dysfunction on Apple's part rather than corporate dysfunction on MLB's part.
   10. RoyalsRetro (AG#1F) Posted: May 07, 2014 at 03:13 PM (#4702379)
Apologies to anyone here, but I wouldn't mind if all the patent attorneys in this country took a flying leap into the Grand Canyon.
   11. Bring Me the Head of Alfredo Griffin (Vlad) Posted: May 07, 2014 at 03:21 PM (#4702397)
It is remarkable to me how dedicated MLB remains to snuffing out free internet publicity. It's especially boneheaded given how well the NBA uses such media to bolster its brand. It remains crazy how much baseball seems to want to shoot itself in the foot on issues like this.


A point worth remembering the next time some ####### moron talks about MLB's internet savvy as a big feather in Bud Selig's cap during one of those nauseating career retrospectives.
   12. Depressoteric Posted: May 07, 2014 at 03:36 PM (#4702423)
A point worth remembering the next time some ####### moron talks about MLB's internet savvy as a big feather in Bud Selig's cap during one of those nauseating career retrospectives.
Well then the fact that this was in fact a misunderstanding and a screw-up on the part of Apple, and not MLB, should hopefully cause YOU to reconsider YOUR position.
   13. Curse of the Andino Posted: May 07, 2014 at 03:56 PM (#4702456)
"As we have done in the past, yesterday we notified Apple (see below) about certain podcasts on the iTunes Store whose titles and/or thumbnails include infringing uses of trademarks of Major League Baseball and certain Clubs. And, as we have done in the past, we asked Apple to have these trademarks removed from the podcast titles and thumbnails. Although we did not ask for or seek to have any podcast removed from the Store, it has come to our attention that Apple removed them. Given our many years of experience in notifying Apple about trademark issues on the Store, we trust that removing the podcasts was an oversight, and ask that you please look into this matter as soon as possible."


That's actually very cool of MLB. They do have to protect their trademarks, after all. Amazon'll sometimes take down books at the request of other (larger) firms even when those making the claims have no rights to the works, no ##### given, no appeal.
   14. Bring Me the Head of Alfredo Griffin (Vlad) Posted: May 07, 2014 at 04:05 PM (#4702466)
Well then the fact that this was in fact a misunderstanding and a screw-up on the part of Apple, and not MLB, should hopefully cause YOU to reconsider YOUR position.


It was a misunderstanding on the part of Apple, but it was a misunderstanding that resulted from an overly-aggressive handling of MLB's trademarks on the part of MLB. There's nothing wrong with a podcast using the phrase "A Twins Podcast", and even if MLB wanted to be anal about it, the proper approach would have been to contact the podcast creators and initiate a dialogue rather than going through a third party like Apple.
   15. BDC Posted: May 07, 2014 at 04:05 PM (#4702467)
Is this action along the lines of those promotions you sometimes see where a company offers a chance to win tickets to the Big Game or the College Championship Games or something that you know is actually the Super Bowl or Final Four but they can't say so? I.e. would it be all right if every time "Twins" was supposed to come out of someone's mouth somebody said "A certain West of St. Paul baseball team" and then noted what happened in their game with "a club connected to the Rock and Roll Hall of Fame City?" I guess that could be hard to keep up. And maybe the players' names are trademarks of the MLBPA, so you'd have to develop nicknames and euphemisms for everybody involved.

EDIT: There's nothing wrong with a podcast using the phrase "A Twins Podcast"

I guess not.
   16. ursus arctos Posted: May 07, 2014 at 04:37 PM (#4702502)
[Wrong thread]
   17. DA Baracus Posted: May 07, 2014 at 04:48 PM (#4702516)
Well then the fact that this was in fact a misunderstanding and a screw-up on the part of Apple, and not MLB, should hopefully cause YOU to reconsider YOUR position.


You're assuming that MLBAM is telling the truth.
   18. RoyalsRetro (AG#1F) Posted: May 07, 2014 at 04:57 PM (#4702524)

Is this action along the lines of those promotions you sometimes see where a company offers a chance to win tickets to the Big Game or the College Championship Games or something that you know is actually the Super Bowl or Final Four but they can't say so? I.e. would it be all right if every time "Twins" was supposed to come out of someone's mouth somebody said "A certain West of St. Paul baseball team" and then noted what happened in their game with "a club connected to the Rock and Roll Hall of Fame City?" I guess that could be hard to keep up. And maybe the players' names are trademarks of the MLBPA, so you'd have to develop nicknames and euphemisms for everybody involved.


The city and state names "Minnesota" and "Cleveland" are definitely not trademarkable, despite this douchenozzle of a city's best efforts. That's why even video games without a MLB license can still use "New York" but they'll call them the Gothams instead of the Yankees.
   19. TDF, situational idiot Posted: May 07, 2014 at 05:04 PM (#4702533)
Did not consider that the problem was corporate dysfunction on Apple's part rather than corporate dysfunction on MLB's part.
Apple is evil, not "dysfuntional".
   20. TFTIO can't talk like this -- he's so sorry. Posted: May 07, 2014 at 05:36 PM (#4702565)
Twirls moustache.
   21. Kurt Posted: May 07, 2014 at 05:54 PM (#4702575)
Apologies to anyone here, but I wouldn't mind if all the patent attorneys in this country took a flying leap into the Grand Canyon.


Patents don't have anything to do with this issue.
   22. Bhaakon Posted: May 07, 2014 at 05:57 PM (#4702578)
Apple is evil, not "dysfuntional".


Agreed.

But still, what did MLB think was going to happen? Content producers are repeatedly infringing and MLB is being a huge pain the butt about it. Given enough pestering and threats, an overreaction like this from Apple was completely predictable. Their legal department is too buy suing Samsung to deal with this nonsense.
   23. You Know Nothing JT Snow (YR) Posted: May 07, 2014 at 06:35 PM (#4702589)
Apologies to anyone here, but I wouldn't mind if all the patent attorneys in this country took a flying leap into the Grand Canyon.


Your half-measures won't do any good.
   24. boteman is not here 'til October Posted: May 07, 2014 at 06:42 PM (#4702594)
It's incredibly easy for MLB to shoot itself in the feet when it wears such huge clownshoes.

Is the concept and implementation of "fair use" completely dead and buried in our brave new world?
   25. Sweatpants Posted: May 07, 2014 at 06:54 PM (#4702599)
Apologies to anyone here, but I wouldn't mind if all the patent attorneys in this country took a flying leap into the Grand Canyon.
RoyalsRetro visits BBTF, promptly shares opinion on patent lawyers
   26. Ray (RDP) Posted: May 07, 2014 at 07:03 PM (#4702601)
Apologies to anyone here, but I wouldn't mind if all the patent attorneys in this country took a flying leap into the Grand Canyon.


This isn't a patent issue.

And I don't see why one's first response would be to blame the lawyers.
   27. cardsfanboy Posted: May 07, 2014 at 07:07 PM (#4702603)
It's incredibly easy for MLB to shoot itself in the feet when it wears such huge clownshoes.

Is the concept and implementation of "fair use" completely dead and buried in our brave new world?


Only way you can determine whether it's Krusty or Sideshow Bob.
   28. KT's Pot Arb Posted: May 07, 2014 at 07:32 PM (#4702610)
Apple is evil, not "dysfuntional".


LOL, the evil of building super useful devices, will it ever be stopped?
   29. KT's Pot Arb Posted: May 07, 2014 at 07:44 PM (#4702613)
And I don't see why one's first response would be to blame the lawyers.


I dunno either, perhaps because it's their fault?

Someone wrote laws giving Apple significant liability if it distributes other parties content or products that infringes someone's else's trademarks. Obviously no lawyers actually are ever involved writing laws, our super talented legislators write them alone from horseback with quills and parchment.

Someone at Apple created a process for iTunes (nearly identical to every other tech companies system) where if someone claims some content or a product infringes their trademark, the content/product is immediately deleted from their system to minimize liability. I'm sure no lawyers were consulted during the creation of this policy.

And the law as it exists allows the claimants to be hyper aggressive and sloppy about claims, since there is no loser pays judicial system to force them to pay for overclaiming their trademarks. No lawyer obviously was involved in fighting ceaselessly against loser pays in any form lest our civil courts suddenly become unclogged and actually justice dispensing in any way.

And no lawyer at the MLB was involved in aggressively filing these flimsy cases, and certainly the MLB is shocked, shocked!, that filing a complaint that always results in the immediate removal of the content they complain about, caused Apple to immediately remove the podcasts they complained about.

I think Aaron Gleeman should count himself lucky. There was a guy in New Zealand that our trademark/copyright trolls sent the FBI after if I recall...
   30. Brian White Posted: May 07, 2014 at 07:51 PM (#4702615)
The city and state names "Minnesota" and "Cleveland" are definitely not trademarkable, despite this douchenozzle of a city's best efforts.


I thought for certain you were going to link to this.
   31. McCoy Posted: May 07, 2014 at 09:20 PM (#4702647)
I think Aaron Gleeman should count himself lucky. There was a guy in New Zealand that our trademark/copyright trolls sent the FBI after if I recall...

Wait, are you defending the Megaupload guy?
   32. Bhaakon Posted: May 07, 2014 at 10:46 PM (#4702675)
LOL, the evil of building super useful devices, will it ever be stopped?


The evil of superior marketing, basically. Apple is a status brand, and has been since the days of the iMac. Most of their products aren't really innovative, but they're more expensive and prettier than most of their competition.

The one thing they do very well is craft simple, intuitive interfaces. A lot of companies struggle with that.
   33. Scott Lange Posted: May 07, 2014 at 11:02 PM (#4702680)
Most of their products aren't really innovative, but they're more expensive and prettier than most of their competition.


The iPhone is their #1 product, right? Surely that was innovative, right? Who was selling a phone that browsed the real web before the iPhone? And the iPad is their #2 product- I don't remember anyone selling tablets before the iPad, and if they did, they didn't have anywhere near the same capabilities of the iPad, right? At the very least, they didn't have the zillions of apps available in the app store.

I'm plenty suspicious of Apple, but it seems absurd to say they haven't innovated.
   34. McCoy Posted: May 07, 2014 at 11:14 PM (#4702687)
Apple is pretty well known for not being innovative, for being the second or third guy to the market. Apple got burned in the late 80's and early 90's with trying to be the innovative trailblazer.

iPod, iPhone, & iPad weren't the first or even close to it but as Bhaakon already mentioned they made their product easily accessible to the consumer and did so in a way that made their products cool.
   35. boteman is not here 'til October Posted: May 07, 2014 at 11:29 PM (#4702692)
So how much do ESPN and Fox Sports have to pay MLB, among other sports entities, to utter their team names and display their team logos during their daily reports? That must cost a fortune, and probably will put them out of business before too much longer if they don't receive outright cease and desist letters themselves.
   36. Poster Nutbag Posted: May 08, 2014 at 01:59 AM (#4702709)
I can't wait until BBTF gets shut down because there are some handles that use MLB team names.....








I kid, of course
   37. Swedish Chef Posted: May 08, 2014 at 02:19 AM (#4702711)
This may not have been what MLBAM wanted but it's pretty ####### stupid of them to not realize that this is what Apple would do. They don't do subtle as a gatekeeper, it's either "you're in" or "you're out". A company complains about infringing trademarks and it seems valid, out they go.

MLBAM should have contacted the podcasters directly first if they didn't want to do the bull in a china shop routine.
   38. villageidiom Posted: May 08, 2014 at 07:01 AM (#4702733)
It was a misunderstanding on the part of Apple, but it was a misunderstanding that resulted from an overly-aggressive handling of MLB's trademarks on the part of MLB.
The overly aggressive parties here were the podcasters (for using trademarks without seeking permission), then Apple (for throwing out the podcasts), then MLB critics in this thread (for uninformed accusations), then Laz Diaz, and maybe then MLBAM.
   39. boteman is not here 'til October Posted: May 08, 2014 at 07:13 AM (#4702736)
Assuming post #38 is serious, I contend that the podcasters did not infringe on MLB copyrights by virtue of the fair use provisions of copyright law.

Otherwise, MLB had better sharpen its knives and go after every sports news and commentary television show, web site, magazine, and whatever else it can find to stop this egregious besmirching of its good name.
   40. TDF, situational idiot Posted: May 08, 2014 at 08:45 AM (#4702756)
LOL, the evil of building super useful devices, will it ever be stopped?
I'm sorry, but they're evil.
   41. McCoy Posted: May 08, 2014 at 08:51 AM (#4702760)
Did Apple also take part in the employer collusion scheme as well?
   42. Jose Can Still Seabiscuit Posted: May 08, 2014 at 09:01 AM (#4702768)
I think if you operate on the assumption that all large corporations and highly successful people are evil you are probably going to be right. For better or worse I think it's impossible to be ultra-successful without being willing to step on the throat of those who are in your way.
   43. You Know Nothing JT Snow (YR) Posted: May 08, 2014 at 09:04 AM (#4702772)
For better or worse I think it's impossible to be ultra-successful without being willing to step on the throat of those who are in your way.


Oh sure, you can step on the throats of your competitors legally and financially, but heaven forbid you try and do so physically, then the laws of the jungle can't possibly apply.
   44. Bring Me the Head of Alfredo Griffin (Vlad) Posted: May 08, 2014 at 11:25 AM (#4702861)
The overly aggressive parties here were the podcasters (for using trademarks without seeking permission), then Apple (for throwing out the podcasts), then MLB critics in this thread (for uninformed accusations), then Laz Diaz, and maybe then MLBAM.


By that standard, your post infringed against a bunch of trademarks, as it used the trademarked phrases "Apple", "MLB", and "MLBAM" without permission.

That, or you were just talking out your ass and carrying Bud Selig's water out of... reflexive contrarianism? Or is it simple perversity?
   45. Greg Pope thinks the Cubs are reeking havoc Posted: May 08, 2014 at 11:46 AM (#4702875)
The one thing they do very well is craft simple, intuitive interfaces. A lot of companies struggle with that.

With Jobs, yes. I'm not sure that's true anymore. The flat design of iOS7 is a confusing disaster. Unfortunately, everyone else is following suit, so it probably won't appear to be that way.
   46. David Nieporent (now, with children) Posted: May 08, 2014 at 12:19 PM (#4702889)
Assuming post #38 is serious, I contend that the podcasters did not infringe on MLB copyrights by virtue of the fair use provisions of copyright law.
Sigh. Home runs and touchdowns and baskets are different things. It's not patents. It's not copyrights. It's trademarks.
   47. jacksone (AKA It's OK...) Posted: May 08, 2014 at 12:40 PM (#4702895)
   48. What did Billy Ripken have against ElRoy Face? Posted: May 08, 2014 at 01:10 PM (#4702913)
Is the concept and implementation of "fair use" completely dead and buried in our brave new world?


Legally, no, but practically speaking in situations like this, yes. The factor analysis used in determining fair use is unpredictable enough (and expensive enough to litigate) that no entity that's even slightly risk-averse will opt to make a fair use case. Far easier just to take things down, right or wrong.
   49. villageidiom Posted: May 08, 2014 at 06:09 PM (#4703087)
By that standard, your post infringed against a bunch of trademarks, as it used the trademarked phrases "Apple", "MLB", and "MLBAM" without permission.
You don't understand fair use, then.

I am using the terms to refer to the businesses, in a way that does not create an opportunity for inference that what I have put forth is produced, sponsored, or endorsed by them. OTOH, marketing a podcast about the Twins as "A Twins Podcast" can give people that impression, and would not necessarily be allowed under fair use. (Whether Gleeman's podcast, or any other, was marketed as such I don't know; I'm using "A Twins Podcast" as an illustration of the concept.)

Part of having a trademark is enforcing proper use of it. Literally. (I don't mean figuratively.) If the trademark holder is aware of a violation they must take steps to end that violation. If they don't, instead waiving enforcement despite being aware of a violation, it can be held against them if they choose to challenge subsequent violations. Basically, if they waive enforcement in any case they know about, they are essentially waiving forever most of the protections that come with having a trademark.

So, why did MLBAM only list certain podcasts in violation of fair use when so many others were untouched? Because they were aware of them. In a sense, that's excellent news for Gleeman. If his was a nobody podcast, MLBAM wouldn't be aware of it, and they wouldn't have known the need to enforce anything. That's a silver lining on a pile of dog ####, but hey, it's a silver lining.
   50. Sunday silence Posted: May 08, 2014 at 06:37 PM (#4703100)
If they don't, instead waiving enforcement despite being aware of a violation, it can be held against them if they choose to challenge subsequent violations. Basically, if they waive enforcement in any case they know about, they are essentially waiving forever most of the protections that come with having a trademark.


Escalator and Refrigerator say: "Hello."
   51. David Nieporent (now, with children) Posted: May 08, 2014 at 07:05 PM (#4703106)
Part of having a trademark is enforcing proper use of it. Literally. (I don't mean figuratively.) If the trademark holder is aware of a violation they must take steps to end that violation. If they don't, instead waiving enforcement despite being aware of a violation, it can be held against them if they choose to challenge subsequent violations. Basically, if they waive enforcement in any case they know about, they are essentially waiving forever most of the protections that come with having a trademark.
I generally agree with what you write in this post, but this paragraph is an exaggeration. Isolated instances of waiver¹ do not inexorably lead to loss of trademark rights. The problem, rather, is that like a hostile work environment claim, the cumulative effect of a bunch of trivial matters can trigger a problem.

¹ I am certainly not conceding that any of these podcasts were in fact infringing.
   52. villageidiom Posted: May 09, 2014 at 06:28 AM (#4703232)
I am certainly not conceding that any of these podcasts were in fact infringing.
Given the evidence has been deleted, it's hard to say how any of them were, or weren't infringing. All we have is that MLBAM thought they were, and Apple at a minimum didn't want to take a chance.
   53. a fatty cow that need two seats (cough, cough) Posted: May 09, 2014 at 08:00 AM (#4703240)
Were they deleted? Or was it just that the ability to download them from itunes was removed? Apple doesn't host these podcasts, right? I listen to a lot and access them through a non-itunes app, so I assume Gleeman and the rest still have access to the original recordings. I'm itunes is the preferred method for most podcast downloads, of course, so it still hurts to lose that access.
   54. Mike Emeigh Posted: May 09, 2014 at 09:01 AM (#4703260)
The issue with the podcasts that were blocked on iTunes was with the logos that were displayed on the download page. For example, Pirate Prospects had a logo that was deemed to be a little too close to the Pirates' team logo - and I can see that.

The iTunes page for Gleeman and the Geek is now back, with a different logo. The logo they used before can be seen on Aaron's page. This one is a little more questionable IMO.

-- MWE
   55. Bring Me the Head of Alfredo Griffin (Vlad) Posted: May 09, 2014 at 09:13 AM (#4703265)
Part of having a trademark is enforcing proper use of it. Literally. (I don't mean figuratively.) If the trademark holder is aware of a violation they must take steps to end that violation.


And as I noted earlier, the proper method of enforcement would have been to contact the content creators directly, express the concern, and suggest a change that would address the issue. Explicitly grant them a waiver to use the theoretically infringing material in exchange for the podcasts appending a disclaimer acknowledging MLB's rights, or ask them to replace it with something mutually agreeable that would serve a similar function.

Instead, they went through Apple, which is only able to pull the content down entirely or leave it up. Well, guess which one they picked? Not only was that approach excessively blunt, it didn't even address the underlying issue, since Apple wasn't the creator or sole provider of the podcasts.

An organization that was genuinely internet-savvy would have understood this.

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