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Tuesday, October 16, 2007
MLB loses in fantasy stats lawsuit

The United States Court of Appeals for the Eighth Circuit (located in my temporary home of St. Louis) today decided CBC Distribution and Marketing, Inc. v. Major League Baseball Advanced Media. At issue was whether the MLBPA could control use of players' names, statistics, and other personal information to prevent a fantasy-sports company from using this information in its leagues without a license. MLBPA had granted exclusive right to a company formed and controlled by MLB, which planned to operate fantasy leagues.

The court held that, although the players enjoyed a state-law right of publicity in their names and other personal information, their publicity rights were trumped by CBC's First Amendment right to use this information. The court balanced the substantial public interest and value in this information against the relatively weak right of publicity in play. CBC's use of the information does not interfere with the players' economic interests, their ability to earn a living from their names or their performances, which is the interest at the heart of the right of publicity; that weakened publicity interest must give way to free speech rights.

Neil Richards at CoOp comments and links to the opinion.


Would this have any effect on the case of the NCAA's blogging policy where the Louisville reporter was thrown out for live blogging... Can the NCAA do the same and still own the facts of the game and limit how they can be reported or am I just stretching this a bit?

link: )

Anonymous Ryan -- 10/17/2007 1:15 AM  

Hmmm. Indirectly, perhaps. The decision suggests that there is First Amendment protection for publication of information, even for purely entertainment purposes, where there is public interest and value in the information. That suggests a similarly pretty broad right in the reporters at games to publish the "facts" occurring at the game.

Blogger Howard Wasserman -- 10/17/2007 8:10 AM  

There is a huge difference between these two cases. The NCAA blogger concerns the live dissemination of a game in progress, dealing with the rights in the broadcast of the game. The MLB fantasy case concerns the right of publicity of the athletes (or in this case MLB Advanced Media who had purchased those rights from the MLBPA). This really turns on the fact that the stats and numbers are newsworthy and published in newspapers and other media formats anyways, the reasoning beeing that you cant have a protected interest in newsworthy information.

Personally I dont completely agree here, but I really didnt expect a different outcome...

Blogger Jimmy H -- 10/17/2007 9:31 AM  

I agree in that I don't see any notable overlap between this and the live blogger case.

The NCAA, or colleges or pro franchises can prevent live blogging as a condition of issuing media credentials or utilizing communications systems owned, leased or operated by or on behalf of them.

The stickier issue is whether it is broadcasting and interferes with the right of publicity as in Zacchini.

Blogger Mark -- 10/17/2007 11:52 AM  


Good point, but I think that the blogger case is better compared to NBA v. Motorola. In Motorola, the technology at issue was "Sports Trax," a wireless paging device that provided users with up-to-the-minute information about any sports event in progress. STATS, Inc. hired people all over the country to watch games and send the updates to a satellite, which would then transmit that info to anyone who has a Sports Trax pager. The pitch was that fans would be able to "attend" any game they wanted to without buying tickets or sitting in front of the TV or radio all day. This sounds very similar to the NCAA blogger.
But as you pointed out, the NCAA could prevent live blogging by limiting its press passes.

Zacchini dealt with the right of publicity. But in Zacchini, the question was that of newsworthyness. The Zacchnii performance was certainly newsworthy, but even newsworthy items can be limited. In Zacchini, the act was shown in its entirety, which was held to be a violation. Along the same line, a news program can show a short clip from a baseball to recap what had happened, but they cannot show the game in its entirety and pass it off as simply newsworthy.

So in the case of the live blogger, the real time updates would be a motorola issue, and the amount of information would be a Zacchini issue.

granted its been a while since I read all this, but this is my recolection of it all.

Blogger Jimmy H -- 10/17/2007 12:30 PM  

But if live-blogging is not "broadcasting," that issue of broadcast rights falls away. It then becomes strictly a right-of-publicity/First Amendment/Zacchini issue, which is precisely what the CBC decision was about--and the CBC court found that balance to favor the First Amendment when dealing with names, stats, etc. I do not see that reporting how those stats were achieved (i.e., Sutton just scored a touchdown for Northwestern) is that much different.

And the NCAA cannot simply resolve this by limiting press passes for games played at public-university facilities. And even the NCAA recognizes this, which is why it backed-off its no-blogging policy over the summer in the wake of the Louisville/CWS situation.

Blogger Howard Wasserman -- 10/17/2007 12:50 PM  


if live blogging is not broadcating, then yes, it would be a Zacchini issue. So in that case it would turn on what? How detailed the blogger is? The whole reasoning behind Zacchini is that its ok to report on the entertainers act, but not to the point where the entire act is shown/reported. Isn't that exactly what the problem with the live blogger is? The blogger describes in detail what is happening ni the game, and in theory this would replace the need for actual attendacne or watching your TV. In my view that is what makes this a broadcast, the detailed description of the game in real time or close to real time.

Blogger Jimmy H -- 10/17/2007 3:14 PM  

The NCAA and its members do restrict the issuance of press passes. Big XII policy is that press credentials are issued only to those employed by organizations that print their content on tangible media or report for television or radio. Internet only publications are excluded.

Other institutions limit issuance to the largest news organizations based on readership/viewership and some limit the number of representatives any outlet may bring.

Off hand I don't recall any challenges to this system.

Blogger Mark -- 10/17/2007 4:00 PM  

It would be hard to challenge this wouldn't it? I mean, it seems like a privilige not a right. Would be interesting to see someone try though.

Blogger Jimmy H -- 10/17/2007 4:06 PM  

The right/privilege distinction does not exist anymore. So if a blogger did challenge the Big XII policy at a public school, some First Amendment analysis would kick-in. Presumably, the school would have to come up with some neutral standard (for example, likely reach of the media outlet) for excluding or including.

As for broadcasting: I find it hard to understand the written word as broadcasting--and maybe that is the difference. If I wrote (in a real-time or after-the-fact medium) a detailed, step-by-step description of The Human Cannonball, do you think the court would uphold Mr. Zacchini's right of publicity claim? I seriously doubt it.

It seems to me "broadcasting" means something other than real-time; it also is the manner of communicating (visually/orally v. in writing). Because I do not see a difference between reading a written description of events in real time or ten hours later (assuming I still will be surprised by the outcome). Either one, by entailing a blow-by-blow description, "replaces" being at the event.

Blogger Howard Wasserman -- 10/17/2007 4:28 PM  

Professor Wasserman, I think that in the end the analysis would be that broadcasting is the oral or visual presentation of the game and live blogging would be considered a news story. A news story that updates frequently but still a news story.

There currently is one or more service out there that ties into the computer software used to compile stats in real time by the game statistician. The "feed" from that information is plugged into software that will create a graphical representation of the game with a field and a ball or other marker moving back and forth along the field and provides down, distance and time information.

Live blogging is quite different from that service because blogging is the writer's description and normally some opinions of the raw facts that the game track services provide. The live blog is more similar to a news article on the event than a broadcast.

While not a legal argument in and of itself, the typical consumer would forego a game track or live blog if given the opportunity to listen to an audio account or watch a video feed. A live blog is not going to damage the value of the "broadcast" product.

Blogger Mark -- 10/17/2007 4:59 PM  

This is all very fascinating information and definitely a big win for the fantasy sports industry.

Thanks everyone for such fruitful comments about the live blogging

Anonymous Michael -- 10/17/2007 5:32 PM  

MLBPA entitled an exclusive right to control fantasy stats while we discussed at whether the MLBPA comply with its rightborder.

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With the trades and acquisitions made going into the draft, plus the bulk of the team that is carried over from last season, and the trades and draft picks made during the draft, it sure seems like the Pats are going to be the team to beat in the AFC this season, and perhaps in all of the NFL.

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I wish I could say that the Redskins did well in the draft and/or in free agency but so many holes still exist that I'm not sure they'll be significantly better than last season. I suppose on face they should be if they can keep their corners healthy. With Landry (argh, hard to type that name as a Redskin!!) back there with a healthy secondary they might be able to cheat up more and put more pressure on opposing QBs. Might.

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