For sports fans at least, the most significant decision out of the US Supreme Court this past week might have been a case they decided not to hear.
I'm in a Strat-o-Matic baseball league. Strat, as it's known, is a Mom-and-Pop company which started producing a baseball simulation back in the early 1960's. Each player who played in the majors the year before had a separate card, and you'd roll three dice to come up with the result of each at-bat. (Needless to say, all of this is done by computer now.) You could replay your favorite team's entire season or, like we do, start a new league from scratch, drafting players, creating a schedule, and playing out your own league's season. The company comes out with the player cards for the previous season each year, and has even done cards for seasons back to 1911.
This isn't an arcade-type game; you don't get to throw pitches, swing a bat, or try to catch the ball: all you do is click on the dice and get the result of the at-bat. But the charm of the game is that the guy who developed it way back then figured out how to use the 216 possible outcomes of rolling three dice to produce uncannily accurate player results. If you've got Alex Rodriguez on your team, and you play him in Yankee Stadium against pretty much the same competition he had last year in the American League, he's going to hit very close to what he actually did. So the thrill of the game isn't pretending to be the batter or the pitcher, it's pretending to be the manager or the general manager, making the in-game tactical moves or engaging in the long-term strategic decisions about building a team around offense or pitching that dominate the discussions on sports talk shows.
It may all sound lame, but Strat's achieved a place in baseball lore. Back in 1981, Cleveland was supposed to host the All-Star game. The players went on strike in May, though, and in place of the postponed game, a game of Strat was played at home plate in Municipal Stadium and broadcast live on the Today Show.
But let's go back to that "player card" for a minute, because that almost strangled Strat in its cradle. Back in 1966, when Marvin Miller took over the Baseball Players Association, he sent a letter to Strat's owners telling them they were engaging in copyright infringement and invasion of privacy by using the players names in the game without their consent. The owners and the baseball players were finally able to come up with an agreement that everybody could live with, and from that point on, Strat (and future baseball simulations by Sports Illustrated, Electronic Arts, and other companies) paid a fee to the MLPA to use the players names in the game. (With one recent exception: Barry Bonds is the only player who's not a member of the association, and thus the game can't use his name at all. He was labeled "A,Y" in the game, and the guys in our league refer to him as "He Who Must Not Be Named.")
But whatever the interest in Strat, it pales in comparison to the emergence of fantasy sports in the past decade or so. As most people know, fantasy sports are to simulations what newspapers are to history books: instead of your players peforming as they did in the past, you draft your players at the beginning of the season, and accumulate points based on how they perform during the season. (This isn't limited to sports anymore; there's even a Fantasy Congress, in which "players, called citizens, draft members of the United States House and Senate, and keep track of their participation within the U.S. Congress." I am not making this up.) Although fantasy sports started back in the 1980's, the Internet boom prompted explosive growth, resulting in the industry growing to a $3 to $4 billion business by 2007.
That's a lot of money, and it's not surprising that the players should want a share of it, under the same theory that they used against Strat and the other simulations. And, for a good while, they got it; CBC, one of the companies running fantasy games, paid about 9% of its gross to the baseball players association. Then in 2005, the association licensed Advanced Media the exclusive right to use the players names "and performance information." Advanced Media created its own fantasy baseball game site, and cut the smaller companies like CBC out of the deal completely.
So CBC sued, asking for a declaratory judgment that its continued use of the players and their stats wouldn't infringe upon Advanced Media's rights. The District Court in Missouri granted summary judgment, holding that the players names and statistics weren't intellectual property owned by the players association, but factual information protected by the First Amendment. Back in October of last year the 8th Circuit affirmed, agreeing that "the information used in CBC's fantasy baseball games is all readily available in the public domain, and it would be strange law that a person would not have a first amendment right to use information that is available to everyone."
And one of the decisions by the Supreme Court this past Monday was to refuse to review the 8th Circuit case. So, if you're a fantasy baseball player, you can breathe a little easier. Unless you drafted Andruw Jones.