Retransmitting Accounts

For a couple of years now, I've been puzzled by the standard copyright notice Major League Baseball offers during its games. "Any rebroadcast, reproduction or other use of the pictures and accounts of this game without the express written consent of Major League Baseball is prohibited," they say, and other leagues do something similar. Can they really require express written consent before anyone reproduces an "account" of a baseball game? Surely not -- you can't copyright the facts. But, I guess they figure there's no harm in making an absurdly broad assertion of their rights.

At any rate, Matt Stoller notes that various giant software companies have banded together to try to put a stop to this sort of thing, and good for them.

Comments

"Surely not -- you can't copyright the facts. But, I guess they figure there's no harm in making an absurdly broad assertion of their rights."

Exactly right. The claim is overbroad, but they figure 1) maybe it will scare some people away and/or get people to pay licensing fees that they don't actually have to, and 2) since you want to make sure that you cover all your rights with a claim, you may as well make your claim intentionally overbroad and let the courts claw them back.

Posted by IMU | August 1, 2007 3:25 PM

The key word is "the," as in "the pictures and accounts." They're obviously not arguing you can copyright facts (although they have taken to the courts to argue this), but asserting that random people can't reproduce broadcaster's calls.

Imagine, lawyers knowing more about something than even Matt Stoller...

Posted by Anon | August 1, 2007 3:27 PM

"...you can't copyright the facts."

True, but you can't simply say "It is a fact that during last night's baseball game, the announcers said:
'(entirety of play by play)'.

This is equivalent to publishing a news report that consists of "The text of the latest Harry Potter book is: '(entire text of book)'."

It's just facts, right?

How much copyrighted material you can reproduce before you are considered to be infringing is probably a well litigated issue.

Posted by Njorl | August 1, 2007 3:34 PM

"They are rebroadcasting Major League Baseball games with implied oral consent instead of express written consent...or so the legend goes."

- Homer Simpson

Posted by GeorgieTheK | August 1, 2007 3:37 PM

Under precisely this kind of copyright claim, the NCAA recently cracked down on a (Louisville, KY) Courier-Journal reporter who had been live-blogging Univ. of Louisville baseball games.

Here's the journalist's take.

Lots of commentary to be found about this, but thepomoblog says it well here:

"This would mean that everyone on Earth would have to stop blogging about sports events while games are in progress. This interpretation means that if you write on your blog "Holy cow! My team's back in the game" while the game's still on, you're in violation of broadcast rights. Ridiculous. One would presume this would extend to BBS posts as well. Yet there is no way anyone could look a blog and think "Wow - that must be stealing a massive share of the television and internet audience." It's our opinion the NCAA didn't think this through. There's simply no way someone at the top looked at this and said "that's right - nobody's allowed to write so much as 'hooray for my team' until the game's over!""

Posted by Will | August 1, 2007 3:45 PM

Yeah -- I always assumed 'accounts' referred to the oral commentary which accompanied the pictures. Makes reasonable sense to copyright that.

It's the "or other use" part that seems overly broad to me.

Posted by Ryan | August 1, 2007 3:50 PM

What Anon said. You can't re-print the full "I don't believe what I just saw" without asking MLB.

Posted by Nicholas Beaudrot | August 1, 2007 3:51 PM

If memory serves, they successfully sued a company who made their money on a subscription model of providing immediate, current scores to pagers and cellphones into oblivion, on the grounds that it constituted a violation of their rebroadcasting rights. That was a few years ago, though.

Posted by Mike Hoye | August 1, 2007 3:59 PM

I believe I heard somewhere a year or two ago that the reason for this rather excessive copyright claim has to do with MLB's desire to maintain control over the lucrative business of fantasy baseball. Any extent to which they can claim copyright over statistics and accounts of the games is an extent to which they can prevent outside companies from compiling stats and accounts and packaging them as part of the workings of a fantasy baseball league. I'm not totally confident that I'm remembering right, though. . .

Posted by Galen | August 1, 2007 4:00 PM

http://www.cbsnews.com/stories/2006/08/08/business/main1877750.shtml

Galen is correct. At one point MLB decided that the information included in "A-Rod went 2-4 with a double" was their in intellectual property.

Posted by ChrisB | August 1, 2007 4:12 PM

Uh, actually baseball STILL claims that they own those rights. They appealed and argued the case before the 8th Circuit in June 07.

http://sportsillustrated.cnn.com/2007/fantasy/06/15/fantasy.lawsuit/index.html

No decision yet.

It's clear that MLB sees their copyright claim as covering not just the broadcast but the facts, name and likeness rights, etc...

But there's no down side to making a broader claim than you legally are entitled to.

Posted by IMU | August 1, 2007 4:20 PM

But there's no down side to making a broader claim than you legally are entitled to

Well, I guess that's what we're about to find out with this complaint to the FTC.

Posted by Glenn | August 1, 2007 4:57 PM

For clarification, the rights the leagues claim the fantasy games need a license to use are the players' rights of publicity (arguable an intellectual property, but not copyright), meaning the use of the players' likeness. Obviously a player (or his collective bargaining rep, to add even more confusion) can stop the unlicensed use of a player's image for commercial purposes (i.e., promoting a fantasy game). The issue is where games have stripped down and don't use anything but the players' name and stats (or even just the stats), does the use of that bare-bones info require a right of publicity license because its part of A-Rods' "likeness" that he has hit 499 home runs (but not one on a day every other starting player did - ha ha, you overpaid classless choke artist).

Posted by jack | August 1, 2007 5:16 PM

And I would agree "accounts" can only mean the actual accounts spoken by the announcers - those are protectible expression, not copyright-free ideas. The historical origin of that notice is actually pretty interesting, deriving from cases in the 30s when radio stations literally tapped into their exclusively-licensed competitors' wires strung through the rafters of the Garden to steal and re-broadcast boxing accounts.

Posted by jack | August 1, 2007 5:23 PM

You can't copyright facts--but you can copyright accounts of facts.

Imainge I were to post the following about Nancy Pelosi:

You may recall that when she first became Democratic leader, everyone said she was doomed to fail -- too liberal. Then, throughout most of 2005-2006, all anyone did was heap scorn on the Democratic leadership. Then, immediately after the 2006 election, we were again warned of a dread Pelosi Backlash -- too liberal. But guess what? She seems plenty popular and is doing a good job of moving liberal legislation through the House. Admittedly, it just dies either at the hands of the Senate GOP or by Bush's veto pen, but that's not her fault.

That's more-or-less all factual--but I expect you and Atlantic Monthly would be unhappy with me if I posted that under my own name.

Posted by rea | August 1, 2007 5:31 PM

FYI, Matt's beloved NBA sued STATS, Inc. on similar grounds about a decade ago, attempting to forbid STATS from providing game reports and/or statistics that were essentially updated in real-time, on similar IP grounds to those asserted by MLB (I think - I'm not an IP lawyer). The NBA eventually lost that case.

Posted by Dr. Manhattan | August 1, 2007 5:42 PM

I suspect that another argument the leagues are advancing is that providing game reports constitutes misappropriation under International News Service v. Associated Press.

Posted by Kenneth Fair | August 1, 2007 5:53 PM

I think the claim they are making refers to the account of what happens in the game, not the account spoken by the announcers. The announcers do not work for MLB. They work for the broadcasters and the broadcasters most likely own these accounts--though probably in conjunction with MLB through some sort of complex contract.

You could definitely argue that real-time blogging of a sporting event is no different from real time newswire transmissions of a sporting event. Surely law on that issue was settled decades ago. Anyone know what that is? My guess is that newswires have to pay some kind of licensing fee.

Further, you could not bring your own video camera and uplink system with you into a game and send this out over You Tube or some other channel. Nor could you bring a microphone and a little radio transmitter and do your own radio announcement of the game. How is blogging about the events different from any of this? I'm often skeptical of broad claims of copyright ownership, but I think MLB has a better claim on all of the events that transpire in a game than most here seem to.

As for owning the player names and stats to the extent that these can't be used in fantasy baseball--that's just nuts. I don't see how that could stand any scrutiny at all.

Posted by Rob Mac | August 1, 2007 8:09 PM

A few months ago Wendy Seltzer, a lawprof, put up a clip of the NFL's warning on Youtube for discussion in class, and she jumped through the appropriate hoops when the NFL asserted that they owned the rights to the video where they assert their rights.

Anyway, it's here:
http://wendy.seltzer.org/blog/archives/DMCA.html

I found it to be pretty funny and sad at the same time.

Posted by Shane | August 1, 2007 9:33 PM

Jason Mazzone wrote a very good article on fraudulent assertions of copyright, which was published just about a year ago in the NYU Law Review (a fine publication with which I am not currently affiliated). The article was entitled, cleverly enough, Copyfraud.

Posted by washerdreyer | August 1, 2007 11:31 PM

I always thought "accounts" meant the specific narration that accompanied the images...that's why they say "pictures and accounts." I think it's undeniable that the announcers' stylings and phraseology are the intellectual property of MLB just as surely as the images are, so there is no overreaching here. I see that several people have made this same observation already, so add this to the pile.

Posted by Rich | August 2, 2007 4:22 PM

There's no downside to claiming broad copyrights you're not entitled to (unless someone else owns the copyright). Music publishers do it all the time -- take a 300-year-old piece of music, slap a copyright notice on it, and publish it with all kinds of warnings about the dire consequences of copyright violation.

No one has standing to sue on behalf of the public domain. All you can do is act in good faith using your (or your attorney's) understanding of the law and dare them to sue you.

Posted by wahoofive | August 3, 2007 1:00 PM

The "Copyfraud" article referred to above is available to download (for free) at SSRN via this link:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=787244#PaperDownload

Posted by Rex | August 13, 2007 5:19 PM