Fantasy Collides with Reality

One of the more sickeningly excessive applications of U.S. copyright I have ever seen is now headed for a Federal District Court. A company that manages Internet-based fantasy baseball leagues has, to my mind, foolishly been paying a huge chunk of money for the statistical information that is the basis for fantasy sports. Here's a chunk of the story from Yahoo's Most E-mailed feed:

CBC, which has run the CDM Fantasy Sports leagues since 1992, sued baseball last year after it took over the rights to the statistics and profiles from the Major League Baseball Players Association and declined to grant the company a new license.

Before the shift, CBC had been paying the players' association 9 percent of gross royalties. But in January 2005, Major League Baseball announced a $50 million agreement with the players' association giving baseball exclusive rights to license statistics.

Despite being turned down for the new license, CBC has continued to operate leagues during the legal dispute.

So, to translate, the Player's Association somehow hornswoggled CBC into paying for factual information. And if one principle is pretty much bedrock in U.S. copyright law is is this: YOU CAN'T COPYRIGHT A FACT. This is a helpful, functional principle. If Barry Bonds steps up to the plate and hits a home run, newspapers, magazines, and citizens are all free to report, in forms stretching from robust narrative to crude data, that this event transpired. The video of the home run will belong to a broadcast network. Photographs of the home run belong to the photographers or their employers. But the core fact -- that Barry Bonds stepped to the plate at 2:07pm, and drove a ball deep over Wrigley Field's left field wall that was estimated to have traveled 403 feet -- is NOT COPYRIGHTABLE. Nor can or should the fact that this is Bonds' 719th home run, 223 of which have come off of left-handed pitching, be copyrightable.

To suggest otherwise is to further erode the ability of news organizations to accurately report on events. CBC's claim is irritatingly modest:

The company claims baseball statistics become historical facts as soon as the game is over, so it shouldn't have to pay for the right to use them.

NO! Not "after the game is over" The Bonds home run is a fact the moment the ball clears the fence and the umpire acknowledges that the ball has done so. From that instant forward, the home run is a fact, subject to reporting, remembrance, and statistical compilation.

If, for convenience's sake, CBC opts to depend on the Players' Association's compilation of these facts (and I imagine the Player's Association and MLB are both quite efficient at compiling and distributing data) I have no objection to this, so long as all parties understand that it is the efficiency that is being bought and sold, and NOT the underlying facts. If CBC chooses to forego this convenience and compile its own statistics, that is an entirely reasonable and entirely legal choice. World Wrestling Entertainment could conceivably frame an argument that its presentations are staged narratives subject to copyright protection, but even then, that the Undertaker "defeated" Mankind with an atomic body slam at 8:03pm in Rosemont, Illinois' Alltel Arena is still kinda sorta factual. As for Major League Baseball, the absence of a tacitly acknowledged narrative construct means that the League is trafficking in the creation of factual events, subjct to reporting, remembrance, and yes, appropriation by those who for fantastic or other purposes wish to recall those events.

And just in case anybody thinks this is the ranting of a threatened fantasy/baseball nerd, I hasten to point out that I have never, never, ever been part of a fantasy baseball league. I attended precisely zero professional baseball games in 2005. And the 10 people who know about my dalliance with fantasy football should just be quiet. I can live quite happily without fantasy sports of any kind.

What I can't tolerate so readily is a distorted copyright culture that threatens to treat a statistical fact like this:

U.S. Deaths Confirmed by the DoD: 2215

. . . as a piece of "intellectual property" subject to permissions and licensing. This is a fact that I, as a citizen of the United States, must own. And the importance of U.S. citizens owning such facts obliges us to fight to retain our ownership over even the records of the trivial accomplishments of an overstuffed athlete.