MLB should have a tough time winning a fight that STATS Inc. already won for the other side in the 90's.

I'm a law student in Boston. I discussed this case with my Intellectual Property professor, and was surprised to hear that he believes MLB (along with their strangebedfellow in this case, the MLBPA) is going to win.

While I'm no fan of the theory of "right to publicity," it is widely recognized by US Courts. Example: it would probably be illegal for me to sell T shirts that said "Tiger Woods" with a bullet point list of his championships. The rationale is that the athlete has created his personal profile through hard work, and that he should be rewarded for that hard work by having monopoly power over merchandise containing his personal profile. (Again, I don't like this holding in the law... but it's the law).

If MLB/MLBPA loses this case, then I would imagine Strat-o-Matic could stop paying royalties to the player's association. Think about it: Strat doesn't use player photos (that I know of), it merely uses "statistical profiles" associated with a player's name. Strat has been paying for the right to do this for years. The same is true of some "text-baseed" video games, where no player images or likenesses appear in the game.

MLB/MLBPA are not arguing that they own the statistics. They are arguing that each player has the sole right to exploit things that are associated with his person. But the "players" have assigned all of their rights to MLBPA, and MLBPA temporarily assigned all "fantasy" rights to MLB. So the MLB is arguing that the commissioner's office (for now) has the right to pick and choose who gets a fantasy license and how much it should cost.

Quick legal background for the lawyers: MLB was CBC's target in the declaratory action. MLB then counterclaimed. MLBPA moved to join as an intervenor party (which was allowed).

In short, I would love for MLB to lose this case, because it would keep fantasy games cheaper. It would also likely reduce barriers to entry in the video game market. If MLB wins (and prevails in subsequent appeals), it will have a legal mandate to become a classic monopolist in the fantasy market - decreasing the supply of games, yet raising prices.

But unfortunately, this is a close call.

Prediction: regardless of whoever wins at the district court level, the other party will appeal, CBC will run out of money, the case will settle, and will be vacated.

Just to be clear, this in no way affects the right to use Barry Bonds' name or stats, correct? He still retains those rights and can selfishly continue to hoard them?

Rivers:

Is your law professor aware of the 1996 decision in NBA v. STATS Inc./Motorola?

I am not a law expert and perhaps there are issues in this case that set it apart from that one. If there are, however, I can't see what they are and would like very much to hear about it. What is it that causes you to identify CBC with your Tiger Woods t-shirt instead of STATS Inc? Is CBC really merchandising in any way that STATS was not?

I’m just wondering.

Johnson,

Good points. I'm sure he's familiar with the NBA v. Motorola case, because I am. It is distinguishable for two reasons that I can see:

1. The NBA/Motorola case was about control of "real time" updates, not about a player's right to publicity.

p.s. Brian - I THINK you are correct about Barry Bonds. Barry Bonds has not assigned his rights to the players' union. Consequently, he would have had to join into the lawsuit (or sue separately). MLB would not have standing to sue on his behalf, using a "right of publicity" theory.

IIRC, the NBA's theory was that it had a property right to the descriptions and accounts of the game. The NBA tried to make the claim that the Motorola updates were analagous to some guy sitting in the stands and broadcasting the games, without a license. (There actually was a case years ago where some dude used a telescope to look into Forbes Field in Pittsburgh and made his own "pirate" Pirate broacasts). The court didn't buy the analogy. It held that these updates were "news" items, and that people wouldn't choose these real-time updates as a surrogate for watching the game.

The Motorola case would be more analogous to this case if the PLAYERS had sued.

There is another case called Morris v. PGA tour, also about real-time updates. The tour could not stop "hole reporters" from providing real-time updates via pagers.

2. The Motorola case was a 2nd circuit decision. It is not binding within the 8th Circuit where the CBC case will be heard (in USDC in St. Louis). But it's true that most courts have followed the Motorola decision.

I agree with those of you who think that MLB is splitting hairs. But, I reiterate that Strat-o-Matic has been paying licensing fees for years for the right to use a player's statistical profile and stick his name next to it. PC simulation games like "Out of the Park" and "Baseball Mogul" use false names, because they fear lawsuits. If MLB loses, there will be a sea change in these markets (for the better, IMO).

I have to agree with Dominic on the STATS lawsuit. I was involved with that, as I wrote the code that scored the games and sent the information to the pagers. That product was not designed to send information about players, but information about the game.

As for Bonds, if major league baseball loses, I don't see how Bonds can continue to to claim he has a right to his stats. His stats are no different than anyone else's.

i'm not clear what MLB's gripe is here-
Are they upset STATS is just using the stats (if so, why)? or that they are making a buck off them?

funny i was reading moneyball today- the part about Bill James and his battles with MLB to release stats-

"To deny the public acess to info that it cares about is the logical equivalent of locking the stadiums and playing the games in private so nobody will find out what is happening." Bill James- moneyball page 83.

I guess what it comes down to is the question:
Are stats history or property?

Someone please answer my original question, it would be greatly appreciated.

Tony,

I agree with Bill James' comments. But I think that they refer more to the older cases (like the one David Pinto was involved with - see above) rather than this particular situation. James might feel the same way about this case, but I think the cases are distinguishable.

Think of it as a spectrum or continuum.

On the far left side of the continuum is this question: Should the players have exclusive control when their image appears in video games, baseball cards, etc?

Almost all of us would say, "yes." The players should get paid for that, and should be able to turn down fly-by-night companies who want to produce cards and video games. Courts have basically unanimously agreed with this point via the theory of an athlete's "right of publicity."

On the far right side of the continuum is this question: Should the LEAGUE be able to control the sale of facts associated with each game (statistics)?

Almost all of us would say "no" and the court in Motorola agreed. Statistics are facts, not copyright-able items. If NBA games were "original works of authorship" like "Seinfeld." the NBA would have probably won in the Motorola case (for those who don't know, a publisher was sued for copyright infringement for producing a "Seinfeld trivia" book. The book described events on the Seinfeld show, etc. The publisher LOST, as the court called it a derivative work, holding that the owners of the "Seinfeld" copyright had exclusive right to license or not license trivia books).

I would argue that this fantasy-game case falls somewhere in the middle of this continuum.

CBC is providing the platform for people like me (yes, I am a customer - my league uses them) to "purchase" Albert Pujols' statistical profile in my league draft. In many ways, that sounds a lot like a "right to publicity" issue (left side of the continuum). On the other hand, CBC is not providing any photographs of Albert Pujols. They are only selling the association between Pujols and a bunch of numbers.

So, I do NOT think this question comes down to "are stats history or property?"

I think this case comes down to "Do Players have a right to publicity in the association between their names and their statistical profiles?"

If I'm a lawyer for Strat-o-Matic, and MLB loses, I advise my client to stop paying my licensing fees. I don't see any legal distinction, yet Strat-o-Matic has been paying these fees for years.

Further, if I'm a creator of a text-based PC game (such as "Out of the Park" or "Baseball Mogul") I start selling my game with real player names, rather than phony ones.

Everyone here should hope that MLB loses this case. If MLB wins, there will likely be fewer commercial fantasy league options and the ones available will be more expensive (classic monopolist behavior - reduce output and increase prices). I've never played the fantasy games on MLB's website, but they look kinda lame.

thanks dom your post was very informative though, but you didnt answer my original question:

Is MLB upset that STATS is just using the stats (if so, why)? or that they are making a buck off them?

If MLB wins, what does that mean for free fantasy games like yahoo?

Regardless of the legal issues involved, isn't in MLB's best interest to keep fantasy games and similar pursuits affordable, accessbile and viable?

They add to the fan base and make the overall product more valuable.

I am part of a generation of baseball fans whose passion for the game was fueled by Strat-O-Matic. How many current fans are being nurtured by Strat and other stats-based games?

You can only stomach games with the likes of "LF SF Giants" so long.

tony - my bad for not being more clear.

I assume you mean "CBC" rather than STATS, right? CBC is the other party in this particular case.

If you mean CBC, then MLB is "upset" because CBC is offering a fantasy league website without MLB's permission. The whole lawsuit started when MLB sent CBC a "cease and desist" letter, threatening legal action. It's impossible to know if MLB would have sent that letter if CBC were offering the games for free.

MLB did not initiate this lawsuit.

CBC filed for declaratory judgment (for non-lawyers, this means CBC asked for a court to "declare" that what CBC is doing is legal). As almost always happens in declaratory judgment actions, MLB counterclaimed, seeking damages if the court finds that the behavior is illegal.

Joe:

Without running the cost/benefit analysis, I think you're probably right. It would seem that MLB would lose more in good will and fans if it reduced the supply of fantasy sites.

If I were in their shoes, it would still be nice to get a judgment saying that the players' owned the right to commercial fantasy sites. From their business perspective, it would be nice to keep those sites out of the hands of unsavory characters.

But if I were commissioner, I really doubt that I would limit the supply of fantasy sites. It's free marketing for your product.

"MLB is "upset" because CBC is offering a fantasy league website without MLB's permission"

hahaha like my choice of words? CBC hurt MLB's feelings.

There is a big difference between use of name and likeness and use of basic facts.

If the MLB loses this (and they should), this doesn't mean that a group like Baseball Mogul can then use players names and/or likenesses...

If these are "games" rather than simple reporting of information, they should still pay licensing fees.

CDM wins lawsuit against MLB today. Judge rules in CDM's favor. A win for all fantasy sports.