October 17, 2007
Fantasy Reality
The Fantasy Baseball industry won a huge decision yesterday:
A federal appeals court upheld a lower court ruling Tuesday that lets a fantasy baseball company use players' names and statistics without paying a licensing fee.
In a 2-1 decision, the 8th U.S. Circuit Court of Appeals panel ruled that CBC Distribution and Marketing Inc. doesn't have to pay the players, even though it profits by using their names and statistics.
...
Telscher said the facts and figures are public information. He said it's no different from media outlets that print game tallies to draw readers and make money.
"When you're using mass information, it's protected under the First Amendment," he said.
MLBAM screwed this up royally. The MLBPA used to run this, and allowed any company to buy a license at a reasonable price. MLBAM took this over and started jacking up the price to drive out competition. Now, a nice revenue stream for the MLBPA is gone. On top of that, MLBAM's fantasy game is going to need to compete with others on price and performance! They are going to need to make people want to play their game, instead of just forcing them to play their game by eliminating the competition. Great news all around.
My original thoughts on the subject are here.
When BAM was formed and given control of the video game licensing side of things, they tried to extort 10 million dollars out of EA because MVP had an online mode (the previous licensing deal was in the low 6 figures). We were literally weeks from shipping a finished product and nearly had to pull anything online related to avoid paying. Luckily, EA's cadre of lawyers worked out some sort of a deal in time -- it's hard to believe the #1 selling baseball game (which anyone with half brain could see as nothing but upside marketing for the MLB) almost shipped crippled because of these morons.
Great news...unless you care about soundly reasoned judicial rulings or the right of publicity. The lower court's opinion was an atrocious example of third-rate legal reasoning, and while the 8th Circuit at least identified the proper issues, the decision came out wrong on the merits. If MLBAM can get an en banc rehearing, they should win against CBC. If not, they appeal to the Supreme Court and I would be stunned if SCOTUS did not overturn this ruling on a vote of 6-3, if not more.
Bad cases make bad law.
Note BTW that SCOTUS may simply decline to hear the case, however, in which case CBC wins. But the dissent in this case leaves a very strong ground for appeal.
I don't care how you cut it, this was an attempt at an end-around past the non-copyrightability of facts. There are squadrons of lawyers willing to pretend that this was about some bogus "right of publicity", but in fact it's about publishing baseball stats.
