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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 possesses the view of a baseball park. Legal experts say technology — specifically the Internet — is revolutionizing the way fans view and participate in sports while simultaneously 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. And the sports industry, attorneys note, is struggling to keep pace with technology, claiming that numerous copyright violations are occurring through new media they can’t control. Among their complaints: Fantasy Web sites allegedly are illegally providing Web users with player statistics, infringing on players’ right of publicity and profiting from unlicensed material. Web sites using “real time” gamecasts on the Internet are allegedly transmitting copyrighted information, and profiting from it, without a license. TiVo is allegedly allowing 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 TV viewers to pause, rewind and slo-mo live TV. 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 … that’s a whole new game and it’s causing the sports industry to rethink how they interface with their fans,” said Professor Jack Williams, a sports law expert at Georgia State University College of Law. Williams, author of the recently published Cardozo Law Review article, “Who Owns the Back of a Baseball Card?/A baseball player’s rights in his Performance Statistics,” believes the sports industry is waging an unsuccessful war to control technology. “It’s like China trying to control faxes and the Internet — they’ll not be able to control it. The smart people will start to embrace it,” said Williams, who believes technology and sports have plenty of tough legal battles ahead. “You’re just seeing the tip of the iceberg in what is being disclosed right now,” Williams noted. Attorney Mike Lufrano, general counsel to the Chicago Cubs, which last year settled a highly publicized copyright infringement case involving ownership rights to the view of games in Wrigley Field, noted that technology can be a double-edged sword for sports organizations. For example, he said, the Cubs have a Web site that now reaches millions of people. On the flipside, the Internet also provides people the opportunity to spread false information about the Cubs. “Technology provides many unique opportunities and many challenges,” Lufrano said. “We have to continue to be vigilant to protect our rights and our trademarks.” WHO OWNS STATS? But the litigation goes both ways. Plaintiffs claiming copyright infringement have taken several swings at Major League Baseball (MLB) in recent years. Most recently, CDM Fantasy Sports, a fantasy sports games operator, filed a lawsuit on Feb. 7 in St. Louis against MLB Advanced Media, baseball’s interactive division, aiming to retain the rights to produce and promote fantasy games without having to get a license from MLB. CDM Distribution & Marketing v. MLB Advanced Media, No. 4:05CV 22MLM (E.D. Mo.). At issue: Who owns player statistics? According to CDM’s lawyer, Rudy Telscher, MLB Advanced Media is expected to decrease “significantly” the number of companies offering its officially licensed fantasy games, therefore denying fantasy leagues the right to use information like player statistics without a license. But CDM is challenging MLB’s authority to license anybody, Telscher said, and is specifically seeking to use player statistics without MLB’s permission. He said CDM doesn’t dispute that it needs an MLB license for trademarked products such as team logos. But statistics are in the public domain, like telephone numbers, he argued. “All we need is the player statistics and we believe we have the right to use them because they’re public information,” said Telscher of Clayton, Mo.’s Harness, Dickey & Pierce. “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 MLB, which, he said, “already suffers from the image that it’s too greedy,” is trying to monopolize the fantasy market. He said the Internet and fantasy games have revived the baseball industry, and that MLB just wants a bigger piece of the pie. “Now that [fantasy baseball] has become so popular, MLB looks at the revenue and says, ‘We want to exclusively control it,’” Telscher said According to the Fantasy Sports Trade Association, more than 10 million people play fantasy football in the United States. Another 6 million play fantasy baseball, spending an average of $175 a year on the game and making fantasy baseball a $1 billion annual business. Attorney Mike Mellis, in-house counsel for MLB Advanced Media, declined to comment on the suit. Jim Gallagher, senior vice president, corporate communications for MLB Advance Media, said that 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, he said, then MLB has a legal right to demand a license for their use. “Player statistics are in the public domain. We’ve never disputed that,” Gallagher said. “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,” Telscher said. AN UPHILL BATTLE IP litigator Kent Goss, who represents athletes with regard to their rights of publicity, believes that MLB will have a tough time convincing a court that player statistics warrant copyright protection. He said that the test will be weighing MLB’s copyrights and the publicity rights of players against what the public wants. “The public is fascinated with sports, and in particular baseball. Essentially, they can’t get enough of stats,” Goss said. “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, cited a 2001 case in which the California Court of Appeal upheld Major League Baseball’s right to use historical players’ names and statistics. A group of former players sued MLB 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, part of baseball history, and MLB had a right to use them. Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400 (2001). In the current lawsuit in St. Louis, Goss noted that MLB could argue that the methods for compiling player stats are copyrightable. How stats are created, how they’re kept and how they’re organized might warrant a copyright argument, he said, “but I think it’s an uphill battle.” Another IP-related suit against MLB Advanced Media is pending in Texas, where DDB Technologies, a patent holding company, is suing MLB for allegedly using its patented technology without a license on many of its online games. DDB Technologies v. MLB Advanced Media, No. A04CA352 (W.D. Texas). MLB Advanced Media offers about 60 games on the Internet for $14.95 a 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,” said DDB’s lawyer, Michael Baniak of Chicago’s Baniak Pine & Gannon. “You just can’t take this stuff without a right to it. That’s it. What’s your right, Major League Baseball?” According to Baniak, DDB Technologies approached MLB with its technology years ago, but baseball officials showed no interest. “Until lo and behold, we discover that mlb.com has a ‘Game Day’ and other [DDB] products start materializing,” Baniak said. “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.” Attorney Sharon Barner of Chicago’s Foley & Lardner, who is representing MLB Advanced Media in DBD Technologies, declined to comment. A recent copyright battle that drew national attention was the Chicago Cubs’ lawsuit against a group of rooftop owners who charged fans to watch Cubs games from their rooftops, which had a clear view of the ballpark. In December 2002, the Cubs sued the group of 10 rooftop owners, alleging that the 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. Chicago NL Club v. Sky Box on Waveland, No. 02 C 9105 (N.D. Ill.). “We know that these folks make millions of dollars a year selling tickets to Cubs games,” said Lufrano, attorney for the Cubs. He said that watching Cubs games from the nearby rooftops is an old Chicago tradition that turned into a huge moneymaking scheme. “It was a tradition where people would go out on the rooftops with a lawn chair and some beer and there was no money in hands,” Lufrano said. “That’s a much different concept of what’s happening today, where some 2,000 people are sometimes paying fees of $100 to $200 a game to watch our product.” The two sides ended up settling the case in January 2004, with an agreement that the rooftop owners would pay the Cubs 17 percent of their annual profits for 20 years. Meanwhile, attorney Baniak, one of several lawyers who represented the rooftop owners, believes the Cubs’ claims were “bogus.” He accused the Cubs of having a history of “trying to extract license fees in any way shape or form,” from anyone they could. “And this case was no different. … The Cubs were looking across the street and saying, ‘We should be getting some of that money. They’re watching our games,” Baniak said. “It was Cubs greed.”

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