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The professional sports industry has become entangled in an emerging web of intellectual property litigation over issues ranging from who owns player statistics in fantasy leagues to who should profit from views of a cherished baseball park. Legal experts say technology — specifically the Internet — is revolutionizing the ways in which fans view and participate in sports while also creating a host of new legal headaches for the sports industry. In the last two years alone, more than a dozen copyright infringement and other IP-related suits have popped up in the sports world. Lawyers also say that the sports industry is struggling to keep pace with technology, claiming that numerous copyright violations are occurring through new forms of media that are often beyond their control. Sports league officials are complaining that fantasy-league Web sites are illegally providing computer users with player statistics, infringing on players’ publicity rights and profiting from the use of unlicensed material. In addition, they claim that Web sites, which offer “real time” gamecasts on the Internet, are transmitting copyrighted information, and profiting from it, without a license. Among the alleged culprits is TiVo, the California-based digital recording company, which has been accused of allowing for the unauthorized television distribution of National Football League games in areas that have been blacked out due to lack of ticket sales. That was one of the NFL’s complaints about TiVo to the Federal Communications Commission, which in July 2004 approved a new portable feature by TiVo despite the NFL’s concerns about copyright piracy. The new feature allows consumers to remotely access programs that they’ve recorded. The NFL’s main concern is that TiVo subscribers could remotely access games where they are blacked out or simply not available and use them for commercial purposes. TiVo allows subscribers to pause, rewind and watch live television programs in slow motion. The NFL and TiVo reached an agreement last October in which the two sides will work together to protect live NFL games against real-time retransmission. “It’s not sports plus technology anymore. It’s sports plus the Internet, plus TiVo, plus these new technologies that allow fans to manipulate content,” says Jack Williams, a sports law expert at Georgia State University College of Law. “That’s a whole new game and it’s causing the sports industry to rethink how they interface with their fans.” Williams, who recently published an article in the Cardozo Law Review titled “Who Owns the Back of a Baseball Card?”, believes the sports industry is waging an unsuccessful war to control technology. “It’s like China trying to control faxes and the Internet. They will not be able to control it. The smart people will start to embrace it,” he says. Mike Lufrano, general counsel for the Chicago Cubs, which last year settled a highly publicized copyright infringement case that involved ownership rights to the view of games in Wrigley Field, says technology can be a double-edged sword for sports organizations. For example, the Cubs, as do other sports teams, operate a Web site that reaches millions of people. On the other hand, the Internet also provides people the opportunity to spread false information about the team. “Technology provides many unique opportunities and many challenges,” says Lufrano. “We have to continue to be vigilant to protect our rights and our trademarks.” But the litigation goes both ways. Plaintiffs claiming copyright infringement have taken several swings at Major League Baseball in recent years. In February, CDM Fantasy Sports, a fantasy sports games operator, filed a lawsuit in St. Louis against MLB Advanced Media, baseball’s interactive division. The lawsuit seeks to retain the rights to produce and promote fantasy games without having to get a license from baseball officials. At the core of the litigation is the question of who, if anyone, owns player statistics. According to CDM’s lawyer, Rudy Telscher, Major League Baseball is expected to decrease “significantly” the number of companies offering its officially licensed fantasy games, therefore denying fantasy leagues the right to use player information without a license. The group’s suit challenges baseball’s authority to license anybody and specifically seeks to use player statistics without baseball’s permission. Telscher says CDM does not dispute baseball’s authority to license for trademarked products such as team logos. But statistics are in the public domain, he argues, akin to telephone numbers. “All we need are the player statistics and we believe we have the right to use them because they’re public information,” says Telscher, at Harness, Dickey & Pierce in Clayton, Missouri. “The Supreme Court has held that mere raw data where creativity is not involved is not something that would be protected by copyrights. . . . I don’t see how anyone could argue that player names and stats are something that are protected by copyright.” Telscher contends that Major League Baseball, which “already suffers from the image that it’s too greedy,” is trying to monopolize the fantasy market. “Now that [fantasy baseball] has become so popular, MLB looks at the revenue and says, ‘We want to exclusively control it.’ “ According to the Fantasy Sports Trade Association, more than 10 million people play fantasy football in the United States. Another six million play fantasy baseball, each spending an average of $175 per year on the game and making fantasy baseball a $1 billion annual business. Mike Mellis, in-house counsel for MLB Advanced Media, declined to comment on the suit. Jim Gallagher, the company’s senior vice president for corporate communications, says baseball officials are not claiming exclusive rights to player statistics. But if a company is trying to use those statistics as a means of financial gain, Major League Baseball has a legal right to demand a license for their use, he says. “Player statistics are in the public domain. We’ve never disputed that,” says Gallagher. “But if you’re going to use statistics in a game for profit, you need a license from us to do that. We own those statistics when they’re used for commercial gain.” Meanwhile, Telscher believes his case could have wide implications for the fantasy sports industry. “If the courts issue a ruling that player statistics are in the public domain, it’s going to have an effect on the whole industry that would mean that nobody would need a license for these games,” he says. Kent Goss, an IP litigator in Los Angeles who represents athletes in matters involving their publicity rights, believes that Major League officials will have a tough time convincing a court that player statistics warrant copyright protection. He says the test will involve weighing MLB’s copyrights and the publicity rights of players against what the public wants. “The public is fascinated with sports. Essentially, they can’t get enough of stats. I think the courts are going to want to protect the fans’ rights to use the stuff.” Goss, a partner in Pillsbury Winthrop’s Los Angeles office, cites a 2001 case, Gionfriddo v. Major League Baseball, in which the California Court of Appeal upheld baseball’s right to use historical players’ names and statistics. A group of former players sued the baseball league for printing their names and stats in game programs, claiming their rights to publicity were violated. But the court held that they were historical facts and that the league had a right to use them. As for the pending lawsuit in St. Louis, Goss says the league could argue that the methods for compiling and organizing player statistics are copyrightable. “But I think it’s an uphill battle,” he adds. Another IP-related suit against MLB Advanced Media is pending in Texas, where DDB Technologies, a patent holding company, is suing the baseball league for allegedly using its patented technology without a license on many of its online games. During the baseball season, MLB Advanced Media each month offers about 60 games on the Internet at a cost of $14.95 per month. These Webcasts offer features such as live play-by-play text, fantasy player tracker, highlight reels and searchable video — all of which the plaintiffs claim they own patents to. “They are using our client’s patented technology,” says Michael Baniak, a partner at Chicago’s Baniak Pine & Gannon who represents DDB. “You just can’t take this stuff without a right to it. That’s it.” According to Baniak, DDB approached baseball officials years ago with its technology without attracting their interest. “Lo and behold, we later discovered that mlb.com has a ‘Game Day.’ And then other [DDB] products start materializing,” says Baniak. “You just can’t embrace this technology that’s out there without making sure that what you are holding is not somebody else’s property.” Sharon Barner of Chicago’s Foley & Lardner, who is representing MLB Advanced Media in the DDB litigation, declined to comment on the case. A recent copyright battle that drew national attention grew out of the Chicago Cubs’ lawsuit against a group of neighboring building owners who were charging fans to watch Wrigley Park games from their Waveland Avenue rooftops, which enjoy a clear view of the ballpark. The team, in its December 2002 lawsuit, claimed that each baseball game itself was copyrighted and that the defendants were profiting from the team’s name, players, trademarks, copyrighted telecasts and images without the Cubs’ consent. “We know that these folks make millions of dollars a year selling tickets to Cubs games,” says Lufrano, the Cubs’ in-house counsel. The two sides wound up settling the case in January 2004, with an agreement that the rooftop owners would pay the Cubs 17 percent of their annual profits over the next 20 years. But Baniak, one of several lawyers who represented the rooftop owners, still believes the team’s claims were “bogus.” “The Cubs were looking across the street and saying, ‘We should be getting some of that money. They’re watching our games,’ ” says Baniak. “ It was Cubs greed.” Tresa Baldas is a reporter for The National Law Journal , which is affiliated with IP magazine.

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