Who Owns a Batting Average?


January 19, 2006


Browse in Intellectual Property

What is it about baseball statistics? The records of no other sport – of nothing period except maybe the stock market –have the same effect. Kids who can’t do long division can tell you Ted Williams’ batting average for every year in his career. Games based on baseball stats have become a teeming subculture. In the Fifties it was All Star Baseball, a board game with a circular card for each famous player. The cards were sectioned off according to that player’s statistics. You put one on a spinner, spun the metal arrow, and if it came to rest on the section marked “1”, it was a home run, and so on. Babe Ruth had a huge “1” section; Eddie Collins, the great second baseman, had a small one, but a large area for singles, which was “7” I think.

Then came a more sophisticated version that took pitching and fielding into account. My younger brother played an entire season one summer with his best friend. They kept batting and pitching records, the whole thing. Now’s there’s fantasy baseball, in which participants manage teams composed of players they choose from current major league rosters. The performance of the players tracks their daily performance in the ongoing season. Some 16 million people play in Fantasy Leagues. I’ve known writers who were avid fantasy ballers. Now it all could come to a crashing halt, thanks to the Major League Baseball monopoly.

Put simply, the majors are demanding a royalty from the fantasy leagues for the use of the statistics. Worse, it appears that they want to hoard the statistics and not grant a license at all. The details are more complicated, as they usually are; but that’s what it comes down to; and this raises a number of questions. For one thing, can someone really “own” statistics that simply are summations of historical facts? Baseball box scores are published in pretty much every newspaper in the land, and now on the web as well. They are handed around, discussed over coffee; when I went to summer camp my father sent me packets of box scores from the Boston Globe.

How do you “own” facts that enter the culture with such abandon? I know that the courts have made distinctions, and then distinctions within those. I’m talking common sense here. If you can own facts then you can own the truth about the past. You can control what people say and write about the past. That doesn’t sound like the kind of nation Madison and Jefferson had in mind when they gave the federal government the power to bestow copyrights and patents.

The majors argue that some fantasy leagues are commercial operations; and thus the use in question is commercial use. That’s a base hit for them. But it begs another question: namely, what are the intellectual property laws for in the first place? The Constitution says that copyrights and patents should be granted to “advance science and the useful arts.” The question to be asked of any claim of intellectual property, therefore, is whether it encourages such advancement, or retards it, commercially or otherwise.

In this case, the statistics in question have been produced for almost as long as Americans have played the game. The advancement has come from the uses people have made of them – the games, the compilations, the exhaustive and wonderfully obsessive analytics of a Bill James. The stats are the raw material; these are the innovations. To grant the major league’s monopoly claim would be to frustrate such creativity rather than advance it. It would bestow upon the professional leagues a pure form of what economists call “monopoly rent” – which is to say, a lot of money for nothing.

Myself, I’d be willing to grant a small royalty to the majors from commercial users, to help defray the ongoing expense of collecting the stats. It shouldn’t be necessary. The leagues gather the stats for their own purposes anyway, including daily publicity. So the “marginal cost”, as the economists say, of letting others use them, is pretty much zero. To the contrary there is gain. Kids who study the Baseball Encyclopedia, and Bill James, and play in the fantasy leagues, become lifelong fans. With the possible exception of bookmakers, no one follows the sport more closely than do fantasy leaguers.

The stupidity of cutting itself off from its own fans for a few extra dollars is, some would say, par for the major league course. (They must be listening to the same lawyers that advise the recording industry.) It’s not as though the majors are financially needy. There are problems regarding small market teams. But pro football solved that one and with a little less greed pro baseball could too.

But that’s their problem. For the rest of us, baseball statistics are a case study in why basic research and data should go into the public domain. When that domain remains abundant and free, invention and the arts flourish, as Madison and Jefferson intended. When basic knowledge – whether about the gene pool, the solar system, or baseball players – becomes fenced, then invention is stymied, for the same reason that tollbooths along the sidewalk would stymie business at the shops along that street.

The basic rule is, absent a compelling case to the contrary, let it be free.