09 March 2005

Get a Grip

Getting a good grip from the start is the key to both pitching a baseball and appropriately-managing Major League Baseball's intellectual property. Consider the following from a recent National Law Journal article:

According to [plaintiff CDM Fantasy Sports'] lawyer, Rudy Telscher, MLB Advanced Media is expected to decrease "significantly" the number of companies offering its officially licensed fantasy games, therefore denying fantasy leagues the right to use information like player statistics without a license.

But CDM is challenging MLB's authority to license anybody, Telscher said, and is specifically seeking to use player statistics without MLB's permission. He said CDM doesn't dispute that it needs an MLB license for trademarked products such as team logos. But statistics are in the public domain, like telephone numbers, he argued.

"All we need is the player statistics and we believe we have the right to use them because they're public information," said Telscher of Clayton, Mo.'s Harness, Dickey & Pierce. "The Supreme Court has held that mere raw data where creativity is not involved is not something that would be protected by copyrights. ... I don't see how anyone could argue that player names and stats are something that are protected by copyright."

. . . .

Attorney Mike Mellis, in-house counsel for MLB Advanced Media, declined to comment on the suit.

Jim Gallagher, senior vice president, corporate communications for MLB Advance Media, said that baseball officials are not claiming exclusive rights to player statistics. But if a company is trying to use those statistics as a means of financial gain, he said, then MLB has a legal right to demand a license for their use.

"Player statistics are in the public domain. We've never disputed that," Gallagher said. "But if you're going to use statistics in a game for profit, you need a license from us to do that. We own those statistics when they're used for commercial gain."

Gallagher demonstrates that when your attorney declines to comment, you probably should as well. Sorry, Jim, but public domain status means that information can be used by anyone for any purpose; the public domain isn't divided into commercial and non-commercial sections. Black's Law Dictionary (7th Edition) describes "public domain" as: "2. The realm of publications, inventions, and processes that are not protected by copyright or patent. Things in the public domain can be appropriated by anyone without liability for infringement." In essence, MLB is seeking to sell what it does not own, hoping to steal first base. Any tee-baller can tell you they can't do that.

Back in school, the older kids often tried to trick the younger ones into believing that they needed tickets to climb the stairs or use the bathrooms. Of course, those things are open to all and no tickets are required; the big kids knew that but sought to trade on the naivete of the littler ones for fun and profit. If the big kids at MLB sincerely believe that they can sell tickets to what's open to all, in this case it's not the little kids who are the naive ones.


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