Who Owns the Batting Average of David Ortiz?


August 10, 2006


Browse in Intellectual Property

Let’s suppose that the Diebold Corporation gained a monopoly on vote counting in the U.S., and then tried to charge a royalty for the use of vote counts in news reports, academic studies, and the like.  It’s not that far-fetched.   I used to work for a House member who served on the Agriculture Committee during the Reagan years.  After Reagan privatized the assembly of certain Ag Department data, this Congressman got a letter from the company that got the contract, offering to sell him, at a hefty price, the data he was authorizing taxpayer money to collect.

Faced with the Diebold scenario, most of us would say, “Wait a minute.  How can you ‘own’ information that the taxpayers pay for and that concerns a public event that is central to the functioning of our democracy?  For that matter, how can you ‘own’ any information – the raw data not the write-up of it – that has been reported and discussed throughout the nation?”  That exact case hasn’t arisen yet to my knowledge.  But a somewhat similar one took an encouraging turn this week, when a federal judge in Missouri ruled that fantasy baseball leagues – and by extension perhaps others as well – don’t have to pay a royalty to the major league monopoly for the use of baseball statistics.

Yes, the major leagues are not public in the same way voting is.  The “teams” are private corporations, trying to make money or at least give their owners kicks — and tax write-offs to boot.   Yet the majors do enjoy a special anti-trust exemption.   More than two-thirds of the teams play in stadiums paid for by taxpayers in whole or part.  (That includes the Texas Rangers, whose then-part owner, George W. Bush Jr., put aside his aversion to taxes to campaign for a local sales tax hike to finance a new stadium for his team.  He then sold his stake for a profit that exceeded $10 million.)

On top of all this, the majors call themselves “the national game,” which would seem to suggest public-ness in some degree.  But that question aside, we are talking about data that arises from a public event that is reported widely in the news.  The corporation called Major League Baseball might “own” the play that occurs on the field, such that it can charge admission and restrict the rights of broadcast.  But can it really argue that it “owns” the number of home runs David Ortiz hit last year, such that another company  has to pay to use that number in a story or game?

There are technical legal issues here on which I am not fully up to speed.  But the test of the law is whether it comports with common experience and common sense; and both would seem to argue that David Ortiz’s home run total is part of the cultural tableau from which others – entrepreneurs or not – can draw. After all, the stated purpose of the copyright and patent clause of the Constitution is to “advance science and the useful arts;”  and the purpose of that, in turn, is to feed the public domain into which writings and inventions should – in the Framers’ minds – soon revert.

Baseball statistics are a somewhat awkward fit for the category of “science and the useful arts,” even in the broader 18th century sense of those terms.  But judges haven’t given much weight to those words, so we’ll let that pass.  The larger question is whether the monopoly protection the major leagues seek bears any significant relation to creativity and cultural advance.  Put the question this way.  Does anyone think that major league baseball would close down, or that players would show any less effort on the field, if they couldn’t collect a royalty from kids who play fantasy baseball.

By their own standards, moreover, the majors would be paying royalties every time they took the field.  The major leagues did not invent baseball.  Neither did General Abner Doubleday, who by conventional accounts devised the game at Cooperstown, New York.  That myth was propagated by Josiah Spalding, the early sporting equipment magnate, who – I’m not kidding — was a cohort with Doubleday in the first group that gathered around Madame Blavatsky, the founder of Theosophy on these shores.

That bit of lore comes from the recent book Baseball Before We Knew It: A Search for the Cultural Roots of the Game, by David Block.  Block demonstrates convincingly that nativist tub-thumping notwithstanding, what we now call “baseball” was neither an individual creation nor even an American one.  It evolved in many countries over hundreds and probably thousands of years.  Sorry George, but even the French played a part.

The first written mention of a game resembling today’s baseball appeared in a German guide to sports that appeared in 1796.  A French book of the same era describes something called  la balle empoisonee (“poisoned ball”) which was similar to baseball even though it involved no bat.  An old Norman game called theque either was the source of the English game of rounders, or else was an offshoot of it.  (There are no references to rounders, cricket or any kindred game in English until 1828.)

But baseball goes back further. An industrious researcher by the name of Harold Peterson dug up precedents in Poland (svinka), Austria (titschkerl), Italy (turca) and even India (pulat).  Another found a Berber tribesmen in a remote part of Libya who played a game called om el mahag that had distinct similarities to baseball.  (One twist: a side that finished its turn at bat could have another turn if it could retrieve the ball and throw it at an opponent before they had left the field.)

This game could be traced back to Europe because these Africans carried an unusual trait for blond hair, which apparently arrived around the same time the game did, which the researcher placed in the Stone Age. Later research put the likely date at around 500 A.D.  But either way, the game didn’t start at Cooperstown. I wonder whether any of this history is cited at the Baseball Hall of Fame that is located there.

It probably is not possible to disentangle all these historical threads, and to separate coincidence from lineage.  But in a way that’s the point.  When culture is open it evolves in all kinds of unpredictable ways.  Scientific research works the same way, as does literature, and fashion, and the arts.  It’s called freedom; and it’s what the framers of the Constitution intended.

Professional sports are entitled to their due, but no more, especially when they are so eager to shake down us taxpayers to build their places of work.  Faced with a choice – royalty payments for major league millionaires, or baseball statistics that spawned the kind of cultural creativity the fantasy leagues embody — there seems not much doubt which comes closer to what Jefferson  et. al. had in mind.