Truthy More Protectable Than Truth

Plaintiff publishes “database compilations and market research performance indices known as BanxQuote National Average Money Market and CD Rates.” Defendants allegedly used indices beyond scope of license in offering bank services and Plaintiff moved on a variety of theories including copyright. Defendant moved to dismiss, arguing in part that plaintiff had not validly alleged infringement of protectable elements of plaintiff’s work.
The decision constitutes Judge Karas’ distillation of the Second Circuit’s New York Merc decsion and other ‘final value’ cases – cases where unprotectible raw data is converted into ‘final values’ such as estimates or valuations. The Court comes up with:
(1) If unprotectable raw data is used, and
(2) the method of converting raw data was an industry standard or otherwise accepted as an objective methodology; and
(3) the final value attempted to measure an empirical reality;
then the final value is not protected by copyright.
To be protected, plaintiff must show that:
(1) the raw data was protectable [for example subjectivity was used in selection]; OR
(2) the method of converting the raw data into a final value was an original (but not necessarily novel) process that is neither widely accepted as objective, nor an industry standard; OR
(3) the final value did not attempt to measure an empirical reality.
Decision at pp 11-12.
The Court notes the paradox:

Though at first counter-intuitive, it is actually to be expected that the more acceptance a financial measure obtains (i.e. the more successful it is), the more ‘fact-like’ it becomes.

Decision at fn. 7.
Here, plaintiff alleged a set of facts where it was plausible that it was selective enough in its construction of its indices that such ‘final values’ may be protectable.
Decision Banxquote Copyright


This Just In: SDNY Affirms Hot New Doctrine in AP Case

Spot the irony in AP’s own report of the decision regarding a decision allowing its ‘hot news’ doctrine action to proceed:

A federal judge has reaffirmed that a 1918 legal doctrine applies in the Internet age by allowing The Associated Press to proceed with a copyright-infringement lawsuit against a company accused of redistributing the news organization’s stories.

Hint: ‘hot news’ doctrine is not a copyright doctrine.
Decision AP Hot News Doctrine


ESPN Relies on CDM Fanstasy League Case To Renoegiote Licensing Fees

Sports-law Blog: ESPN Relies (in part) on CDM Fantasy League Case To Renegotiate Licensing Fees:

In today’s edition of Street & Smith’s SportsBusiness Journal (subscription required), John Ourand and Eric Fisher report that ESPN is renegotiating its digital rights deal with MLB Advanced Media, looking to pay a significantly lower fee after finding several pieces of the original agreement it signed in 2005 no longer cost effective (“ESPN Seeks Better MLBAM Terms”).


When Black Friday Comes con't

If warning letters about leaking Wal-Mart’s prices have arrived, can Black Friday be far behind? Via BFADS.net.


"Blogger Ejected From NCAA Baseball Game"

LexBlog: “Blogger Ejected From NCAA Baseball Game” (Blogs are considered a ‘live representation of the game’ and blogs containing action photos or game reports are prohibited until the game is over).


Who Owns Baseball Statistics?

Glenn Mitchell, head of litigation here, has written, Take Me Out [of] the Ball Game? U.S. District Court Rejects Proprietary Rights in Player Names and Statistics” regarding C.B.C. Distribution v. MLB, a recent decision on who owns baseball statistics, published in the November-December issue of INTA’s The Trademark Reporter.


Statistics Not Intellectual Property of MLB

SI.COM: “Judge: Statistics not intellectual property of MLB
The decision is up on Pacer:
C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, LP, Case no. 4:05CV00252MLM (E.D. MO August 8, 2006).
Quick summary: C.B.C. organized fantasy baseball leagues, a ‘paper’ (or online) game where users compiled their own teams consisting of major league players and competed using those players’ ‘real’ statistics. MLB alleged infringement of those players’ rights of publicity.
Held: C.B.C. use of the players’ names in conjunction with their public domain statistics (as opposed to if they had used the names in conjunction with the players’ likenesses), does not constitute use of the name as a symbol of identity and therefore is not an infringement of the players’ rights of publicity.
As a policy aside, it was noted that use of a player’s statistics in fantasy baseball is likely to enhance a player’s popularity, and thus does not contradict the policy goal of the right of publicity (Ed. note: ugh).
Additionally, C.B.C. has a protectable First Amendment interest in the use of the statistics.
Background here.


Who Owns Baseball Statistics?

Via Businessofbaseball.com, via May It Please The Court, a complaint filed by CBC, a vendor of rotisserie (or fantasy) league statistics software and services, against Major League Baseball. Fantasy league sports involve fans drafting their own teams of (real) players and competing based on the statistics of those players. Some media, such as USA TODAY and Sporting News, will administer leagues for readers, and CBC provides statistics for them. CBC had had a license to use the names of the players, but then the players union signed an exclusive contract witl MLB, which did not complete a license with CBC. CBC now seeks a judgment that it is not infringing MLB’s rights.


When Black Friday Comes

There is now a ‘Black Friday’ ad website industry. More coverage here.
If you’re aware of (legally disclosable) lawsuits or protests arising from the ‘leaking’ of Black Friday pricing data, pass it on.


I, Robot Aggregator

ClickZ article re protest by Craigslist re robot aggregator ‘harvesting’ Craigslist content. I’m quoted on some prior case law on ‘data harvesting’ cases.