[A2k] US Supreme Court Hands Big Win to Free Speech Advocates in the IP World

[Robin Gross]

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[ Picked text/plain from multipart/alternative ]

http://ipjustice.org/wp/2008/06/02/highest-us-court-hands-big-win-to-
free-speech-advocates-in-the-ip-world/

Highest US Court Hands Big Win to Free Speech Advocates in the IP World
Major League Baseball v. CBC Distribution
By Allonn E. Levy, Esq.
2 June 2008

By doing nothing today the U.S. Supreme Court handed a big victory to
those concerned with the ever-tightening spigot of free-flowing
commercial information.  After a change in MLB=92s licensing scheme in
2005 and the subsequent denial of a license to use the names and
statistics of major league baseball players in its for-profit
=93fantasy leagues,=94  St. Louis based C.B.C. Distribution sued Major
League Baseball in late 2005.  Presumably understanding the potential
reach of the issues that would be decided in the case, the Major
League Players association intervened in the case as well.  C.B.C.
claimed that even though MLB would not grant a license for C.B.C. to
use the information, C.B.C. nevertheless had a First Amendment right
to utilize the names and data =96 even though it was exploiting the
information for commercial gain.

M.L.B. argued that the information was protected by federal copyright
laws, contract law, and the state law rights of publicity.  The trial
Court disagreed and in 2006 found in favor of C.B.C. on summary
judgment.  In October 2007, the Eight Circuit U.S. Court of Appeal
issued an opinion upholding the trial court=92s findings.  The Eight
Circuit=92s carefully reasoned opinion first corrected certain elements
in the trial court=92s opinion and expressly held that C.B.C.=92s
activities did violate Missouri=92s state law Right of Publicity
statutes.  However, the Court held that despite the statutory
violation, the activity was protected by the right of Free Speech
because the data was publicly available for all to see.  The Court
also noted that there was no possibility of confusion by consumers or
any suggestion that the players were endorsing a particular product
or site.  In fact, the Court noted, the activities of C.B.C. were
likely increasing interest in baseball =96 a pastime that itself allows
players and owners to reap hansom pecuniary rewards.

Today, the U.S. Supreme Court simultaneously granted the requests of
certain parties to file =93friend of court=94 briefs (meaning the Court
considered those briefs) but denied M.L.B.=92s petition for
Certiorari.  While not technically citable as =93Supreme Court
precedent=94 by taking no action, the U.S. Supreme Court will be seen
by most as tacitly approving the intermediate court=92s opinion.  By
considering the petition and declining to take up the case
practitioners and other Courts around the country who have been
monitoring this case closely will likely take note.

In the past, some District and Circuit Courts have been hesitant to
uphold First Amendment rights in the commercial context.  At least in
this instance, however, both the trial and intermediate courts had
little difficulty in doing so.  In its opinion, U.S. Circuit Judge
Arnold writing for the majority addressed the issue concisely:  "It
would be strange law that a person would not have a First Amendment
right to use information that is available to everyone." The idea
however, has not been uniformly adopted.  Cases originating in
California have been extremely protective of the Right of Publicity
protecting such rights as the mimicked voices of actors, likenesses
and such.  Some feel that the Ninth Circuit=92s proximity to Hollywood
has made it more sensitive to the pecuniary rights of celebrities
than to the First Amendment rights of individuals and businesses.

Curiously, the Supreme Court has been silent on the clash between the
First Amendment and rights of publicity for decades.  Its last case
on the topic was Zacchini vs. Scripps-Howard Broadcasting =96 a 1977
case that held that the commercial exploitation of a performance was
not protected Free Speech and thus was compensable under a Right of
Publicity theory.  But that case was decided by the narrowest of
margins =96 a 5-4 vote.  It also did not provide much direction to
practitioners and courts as to where and upon what criterion the line
between Free Speech and commercial publicity rights would be drawn.

How important is the High Court=92s decision today to let stand the
Eighth Circuit=92s opinion?  In the brief time the opinion has been
published =96 and despite a then-pending petition for certiorari, the
opinion has already been cited 36 times by commentators, parties and
at least one other Court.

Today=92s refusal to review (and potentially reverse) the Eighth
Circuit opinion secures greater rights to access available public
information and utilize it for commercial gain.  The High Court=92s
decision means the Eighth Circuit=92s carefully considered opinion will
become the last word  on this issue =96 at least for the moment.  An
obvious =93win=94 for Free Speech advocates and =93netizens=94 concerned wi=
th
ensuring open access to information on the Internet, the case also
helps the burgeoning field of Internet information consolidators who
help consumers collect information and process it.  Expect to see the
case cited frequently in the near future as more and more courts will
be facing cases where Internet based information companies battle
these issues out with content holders.

Research Notes:

District Court Decision =96 C.B.C. Distribution and Marketing Inc. v.
Major League Baseball Advanced Media L.P. and Major League Baseball
Players Assoc.  443 F.Supp. 2d 1077 (E. Dist. Mo 2006) [superseded by
Appellate opinion]

Eighth Circuit U.S. Court of Appeals Decision =96 C.B.C. Distribution
and Marketing Inc. v. Major League Baseball Advanced Media L.P. and
Major League Baseball Players Assoc.  505 F.3d. 818 (8th Cir. 2007).
[U.S. Cert. Denied 6/02/08]

U.S. Supreme Court Order Denying Certiorari =96  Major League Baseball,
et Al. v. C.B.C. Distribution & Marketing. ____ S.Ct.____, 2008 WL
512723 (U.S.), 76 USLW 3471





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