Baseball, books, and property rights
posted by Kaimipono D. Wenger
Alan Schwarz has an interesting new article in the New York Times on the baseball statistics case. (The article cites, among others, Eugene Volokh.) A few of the more interesting snippets (this is all fair use, I tell you!):
“If anything, this case is even more impactful if the court rules for the players, because it will speak to any time you use a name in a commercial venture,” said Eugene Volokh, a professor of law at U.C.L.A. “What if you use a historical figure’s name in a historical novel? Or other games, like Trivial Pursuit? How about ‘Jeopardy!’? Would they be liable as well? That seems to be the logical consequence of this. How do you identify what is news, and other times when there’s communication of factual information?” . . .
“Fantasy leagues are an intermediate case,” said Rod Smolla, dean of the University of Richmond Law School. “This could become like the Grokster case in the music-downloading world, where the Supreme Court could be asked to draw that line between the benefits of public use and ownership of property.” Fame, Mr. Smolla said, “belongs in part to the people who earn it and the public that gives it.
There you have the basic arguments. The difficulty comes in determining the place of baseball statistics on a continuum. On one end of the continuum are items that look a lot like property, such as detailed compilations of Derek Jeter’s batting average over the past ten seasons. On the other end are basic facts known to every Tom, Dick and Harry at every sports bar in America, like the fact that Ted Williams was the last player to hit .400. A detailed list of World Series winners back to 1901 looks more property-like; “the White Sox won it last year” doesn’t. And so forth.
Complicating matters further, the statistics case will play out in a world where ideas about property itself may be somewhat in flux. An interesting piece by Kevin Kelly ran in the NYT magazine last Sunday, about the effects of digitizing intellectual property. Kelly’s article argued that:
In a regime of superabundant free copies, copies lose value. They are no longer the basis of wealth. Now relationships, links, connection and sharing are. Value has shifted away from a copy toward the many ways to recall, annotate, personalize, edit, authenticate, display, mark, transfer and engage a work. . .
Copies don’t count any more. Copies of isolated books, bound between inert covers, soon won’t mean much. Copies of their texts, however, will gain in meaning as they multiply by the millions and are flung around the world, indexed and copied again. What counts are the ways in which these common copies of a creative work can be linked, manipulated, annotated, tagged, highlighted, bookmarked, translated, enlivened by other media and sewn together into the universal library.
There’s a lot of truth to Kelly’s argument, and it applies to much more than just books. It certainly applies in the baseball statistics case, and that reality is going to be the backdrop that determines how the case affects property rights.
Thus, Eugene’s ‘Jeopardy!’ example is a good one. We can all imagine Alex Trebek and a ‘Jeopardy!’ answer of “This baseball player was the last to hit .400.” (“Question: Who is Ted Williams?”) The real emphasis is not on the definition of property per se, but rather on what are acceptables uses of the property. This is because in a world of low-marginal-cost copying, no one can prevent me from going to MLB.com and assembling lengthy lists of player statistics. And I don’t harm MLB or anyone else if I collect such copies. What MLB wants is control over how I can use such lists.