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CBC Distribution & Marketing, a fantasy baseball company, is suing in the United States District Court for the Eastern District of Missouri for a declaration that its use of baseball statistics does not require a license from Major League Baseball. Coverage is here and here; I couldn’t find the case on PACER in a quick search.

CBC had been paying the MLB Players’ Association 9% of revenue in order to use players’ stats until a new agreement between the clubs and the players gave MLB itself the right to license player stats. MLB has declined to issue CBC a license.

CBC says they never needed a license in the first place. They argue that sports statistics are uncopyrightable facts, at least once the game is over. MLB says that permission is required in order to “commercially exploit the identities and statistical profiles” of players.

It is an axiom of copyright law that facts are not copyrightable, but original compilations of facts are. The real question is whether the compilation of facts created by Major League Baseball, to the extent the selection and arrangement of that compilation is copied, is copyrightable. The runs, hits, and errors themselves are not the “works” of an “author”; if they were, the game would be fixed. As it were.

Even if the right to prevent misappropriation of “hot news” established in INS v. AP still exists — a dubious proposition, in my opinion — stats are primarily useful to fantasy baseball companies after the game is over.

It seems likely that MLB will assert a raft of non-copyright theories, since their copyright case would be so weak. They’ll almost certainly say that the names of the teams and the players are their trademarks — but their use in the fantasy baseball context is almost certainly fair use, since the names are being used solely to describe things that actual people actually did, not to appropriate goodwill. MLB will probably also claim that licenses are required because of state-law rights of publicity — but no state, to my knowledge, has allowed a person to control the use of his or her name when it’s used to describe things he or she actually did.

I agree with the lawyer quoted in the LA Times story who said this seems likely to settle quickly, since a decision on the merits is unlikely to favor MLB.

UPDATE: Thanks to Adam, I’ve found the district court record. (It’s docket number 4:05-cv-00252-MLM.) It’s a bit more complicated than it seemed, since the Players’ Association has intervened as a defendant and is asserting counterclaims against CBC for breach of contract, and is asserting defenses against declaratory judgment based on terms of the previous license. The Players’ Association has moved for summary judgment.