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Good news in judge's fantasy-league ruling

By Gene Policinski
First Amendment Center executive director
08.11.06

Fantasy baseball league fans — and the companies that sell statistics-based services to them — are the beneficiaries of a ruling yesterday by U.S. District Judge Mary Ann Medler in St. Louis.

Judge Medler’s decision that neither Major League Baseball nor its players “own” the stats that track player performance and game developments, or control use of their names in a purely-factual account, also fits into a larger picture — one that goes beyond baseball and well beyond sports into the emerging law regarding “who” owns “what” in cyberspace.

Baseball’s owners and the players union teamed up in this specific case — CBC Distribution and Marketing, Inc. v. Major League Baseball — to claim both intellectual-property rights to accounts of the games and a player “right of publicity” to control how his name is used in a commercial venture.

Medler held that mere facts about games are not subject to copyright, echoing earlier decisions that held such “serendipitous” contest results were unlike other public and creative events such as stageplays or movies. And, Medler said, even if players have a general right of control over their names, such would apply when the names were being used in connection with commercial offers that, for example, might imply product endorsement – but not when attached simply to a factual account of a game or player performance. First Amendment protections trump player commercial interests, the judge said.

Some critics painted baseball owners and players as villains, out to destroy the fans’ simple enjoyment of the stat-based competition known as “fantasy baseball,” in which “team managers” compete on the basis of actual statistics rung up in the big leagues by players on their respective teams. But providing stats — along with electronically maintaining league records and the advertising attached to such online offerings — makes CBC and other such firms a profitable living — apparently one in which players and owners want to share.

That’s the tempest-in-a-dugout at the heart of this case. But consider the larger implications of Medler’s holding that the facts and names of a game cannot be controlled, even by those who own the teams and play the games. At its core, the decision says news events cannot be owned by newsmakers, and that those in the news do not have a right to control factual reports about their activities — a ringing First Amendment protection of the free flow of information, unfettered by either government or commercial interests.

It’s also worth considering what the ruling did not do: preclude leagues from charging rights fees for live broadcasts of sporting events; prevent players and others from controlling how their names are used when an endorsement or support might be implied or stated; or settle the issue of what is “live” and what is not in a wired world of instant data transmission and photo accounts.

A 2004 decision in a Professional Golfers' Assocation-related case would caution those who see Medler’s decision as providing no limits to relaying accounts of athletic events. The 11th U.S. Circuit Court of Appeals upheld the PGA’s move to prevent news media from instantaneously relaying reports of golfers’ scores. At the time, the PGA required news media to wait at least 30 minutes or until after the association’s own Web site had posted a score. The 11th Circuit said the PGA’s investment in an intricate score-reporting system could justify the restriction. So reporting was OK — but as “history,” not real-time accounts.

And yet, in 1997 the 2nd Circuit had ruled the National Basketball Association could not impose such an “as-it-happens” ban. The street value of the timeliness of reporting was at the heart of those two cases – and clearly that issue isn’t yet settled.

But at least there is a clear affirmation from Judge Medler that facts — the ultimate stuff of news and information — cannot be “owned” or copyrighted.

Comment? E-mail me.


Update
Censorship in the name of decency?
By Gene Policinski As some CBS affiliates hesitate to air a 9/11 documentary because of firefighters' foul language, we must ask should we block free and open discussion because the reality of that day's events may offend some? 09.05.06

Previous
Trolling for the new and noteworthy
By Gene Policinski Updates look at recent Supreme Court rulings, video games, and prospects for a journalist shield law. 07.31.06

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Internet tangles web of rights in sports coverage

When is sports information private intellectual property, and when is it fair game for distribution? 01.29.01

Strike 1: Major League Baseball can't control player names, stats

Federal judge finds fantasy leagues may use information because it isn't the intellectual property of Major League Baseball. 08.09.06

NCAA bounces Ky. reporter for blogging during baseball game

Editor defends Brian Bennett's right to real-time reporting during tournament; NCAA spokesman says it's against policy. 06.12.07

League seeks to force fantasy baseball to play by its rules
8th Circuit panel appears skeptical of claim that online fantasy companies must pay license fees to Major League Baseball. 06.18.07

NFL plans for media coverage rankle some newspapers
Editors lodge complaints about limits on online video, requirements that sideline photographers wear ad-emblazoned vests. 07.31.07

8th Circuit rules in favor of fantasy baseball company
Three-judge panel upholds lower court decision that lets fantasy league use players' names and statistics without paying licensing fee. 10.17.07

MLB strikes out in effort to shut down fantasy baseball business
Supreme Court leaves intact lower courts' rulings that found company has free-speech right to use players' names and stats. 06.02.08

CBS sues NFL Players Association over fantasy football
Network goes to federal court, hoping to establish its right to use statistics without charge in online leagues. 09.09.08

Fantasy college sports spur debate over player rewards
At commission meeting, Hall of Famer Nick Buoniconti pounds table, insists on payment for collegiate athletes. 10.29.08

Yahoo sues NFL union over players' stats
Web giant says it shouldn't have to pay royalties to use players' statistics, photos and other data in its online fantasy football game because info is already publicly available. 06.05.09

Media groups object to Southeastern Conference's credentials policy
Associated Press, Gannett are among organizations that say they won't comply with new game-day media rules. 08.26.09

Below par: The PGA and freedom of the press
By Ken Paulson Court rules that golf tour can prevent news media from reporting scores as they happen. 04.18.04

Rhubarb resumes over who owns sports info, images
By Gene Policinski In the struggle over rights to game information, photos and more, let's remember that it falls to a free press to report the good and the bad, without having to answer to owners or investors more interested in marketing than journalism. 03.09.08

First Amendment Watch blog


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