Baseball fans have been fascinated with player statistics for a really, really long time. Sabermetrics changed a few things about baseball in recent years, so it’s about time other sports started looking into more rigorous data analysis, too. Fantasy team managers and actual professional coaches are both looking for diamond-in-the-rough players, and more player statistics are being collected and analyzed to find them. Here are just a few interesting developments in the field of performance analysis.
A little over two years ago, we wrote about what we considered to be an absolutely insane lawsuit from Louis Vuitton, arguing that a mock basketball, which appeared in a Hyundai commercial for one secondviolated LV’s trademark. You can see the commercial below:
If you missed it (entirely possible), at the 3 second mark, this image flashes briefly:
The point of the commercial is to get people to imagine what life would be like if “luxury” items were everyday items, and thus the mock basketball with symbols designed to suggest a luxury bag, like a Louis Vuitton bag. As we (and many, many trademark experts) suggested when the lawsuit was filed, the claims here are simply crazy. There is simply no harm whatsoever done to Louis Vuitton by this ad. Most people wouldn’t even notice the markings and if they did, what possible “harm” would it do? The answer is none. There is no consumer confusion whatsoever. There are no LV basketballs that won’t be sold because of this (in fact, the judge in this case notes that, after seeing this commercial, some people wanted one — which would suggest a market opportunity, rather than litigation).
Of course, Louis Vuitton’s complaint didn’t rest on the bedrock of trademark law — the likelihood of confusion — but a more modern bastardization of trademark law called “dilution.” The concept of dilution in trademark law is an affront to the purpose of trademark law, which is supposed to be about protecting consumers from confusion. That is, it’s supposed to be about preventing someone from buying Bob’s Cola, thinking that it’s really Coca-Cola. But there’s no such risk here. Dilution, however, flips the very concept of trademark law on its head and pretends (falsely) that trademark law is about protecting a company’s trademarks from anyone doing anything at all with it that the company doesn’t like.
Unfortunately, the courts don’t always get things right — which is why we get such ridiculous lawsuits in the first place — and here, amazingly, the district court has sided with Louis Vuitton in its dilution argument, granting summary judgment on Hyundia’s liability for dilution, while it rejected Hyundai’s movement for summary judgment rejecting all of Louis Vuitton’s claims. This is, in many ways, horrifying.
Eric Goldman’s summary, linked above, highlights the many problems with the ruling — while cautioning that the details suggest this type of ruling is limited. Still, as he notes:
And then we have an opinion like this–where the court finds trademark dilution without finding infringement (not resolved yet) and in a situation where EVERYONE can immediately tell there was zero harm to the brand owner. Rulings like this make trademark academics shudder in fear that trademark dilution will swallow up all of trademark law and confer rights-in-gross to trademark owners. While I don’t share those fears for reasons I’ll explain in a bit, unquestionably this is a bad ruling.
Goldman goes on to highlight some of the more specific problems with the ruling, but the key point is simply that there is no harm here. None. Absolutely none. Perhaps less than none, given the reports of interest in LV basketballs. When the law doesn’t care about that, then the law is, unquestionably, broken. A ruling like this automatically lessens respect for trademark law, because it makes no sense at all. It makes a mockery of the judicial system by suggesting that lawsuits like this have any merit whatsoever.
If anyone has gotten the streaming sports thing right in the past, it’s been NCAA Basketball. I’ve actually pointed to them as an example in the past of how the rest of the sporting world should embrace streaming their games and advertise the hell out of the experience. Rather than locking down access to viewership, like the MLB, NBA, NFL, and NHL, the NCAA Basektball Tournament got it right, partnering with broadcasters to stream the games to their sites free of charge, with all the advertising one would expect on television. It was a wonderful method for ensuring that one of my monitors at work had their games on. It made it certain that I’d be that weird guy staring at images on his phone while taking the train home from work. It confused my neighbors as to how I could somehow simultaneously grill steaks on my deck while announcers went ballistic over last second hail mary shots as time ran out on the clock. I was engaged (sorry Mom and Dad, I mean engaged to the game).
And now they’ve taken that all away from me. To be fair, they’re still streaming the games. And they promise that the streams will work across multiple platforms (computer, iPad, iPhone, Android devices, etc.). And it only costs $4.99 for the entire tournament.
But that’s where the lie in all this is. It’s not just $4.99 to watch the tournament on every device other than my television (where it’s FREE!). There are serious mental transactions to consider here. Like most red-blooded Americans, I’m in an NCAA office bracket. Something like half the games in the tournament take place during work hours across the country. Most of us don’t have televisions at our desks, in our cubicles, wherever. Watching at work is kind of the whole point here, with all the ducking and dodging from our bosses we have to do as a result. Now, we can argue all we want whether watching the tourney at work is productive or a good idea, but from the NCAA’s standpoint, they shouldn’t care at all. They should want people to watch. Asking them to pay $4.99 to do all of this is a massive fail, particularly since all of those same advertisements that were in place remain.
So…they’re charging for something that used to be free…without adding any benefit. I watched the games on their feeds the past couple of years. This year, not so much. The obvious question is does the money they’re making from the $4.99/subscriber outweigh the eyeballs that are no longer watching the advertising because of that cost. Maybe those in the comments can change my mind, but I’m fairly certain there’s more folks like me out there than people buying the “package”.
Moneyball (the movie) has recently popularized the concept of sabermetrics, but for a while now, real sports fans (and mathletes) have been applying rigorous analysis to just about every sport. There still aren’t any sure bets, but forecasting player performance has gotten a lot better in the last decade or so. Here are just a few examples of math geeks taking some shots at jocks.
As you may have heard, the NBA and the NBA Players Association did not hit their deadline last night to reach a new collective bargaining agreement, and thus began a lockout/work stoppage. Of course, we’re not a sports blog, so what’s interesting about that for us? Well…. apparently over the last few days, the webmasters for all of the NBA team websites have been scrambling like mad, because they believe that when the players are locked out, there can be no mention or image of any player on any NBA webpage:
That’s because the moment the clock strikes midnight on the current CBA, all those images and videos of NBA players have to disappear off NBA-owned digital properties. Depending on how you interpret “fair use,” the prohibition could include the mere mention of a player’s name on an NBA-owned site, though different teams have different interpretations of this particular stipulation.
That’s from ESPN… who doesn’t give any more detail as to what it is they actually think would be infringing here. It’s certainly not copyright, even though that’s implied. There’s no copyright in names. And the copyright on the images would be held by whoever took the images, not the players. I’m assuming this is more of a publicity rights issue, which we’ve been discussing a lot lately. But those are generally based on a patchwork of state laws. And, even so, I can’t quite see how that would prevent teams from accurately listing players who were on the team. That’s factual information. But not according to the teams:
There are additional gray areas that are still up for discussion: What about a photo of a Lakers fan wearing a No. 24 Kobe Bryant jersey? What about a retrospective feature on the John Stockton-Karl Malone Jazz teams? Do tweets from the team’s official Twitter feed that mention a player and/or link to an image need to be deleted? How about Facebook posts?
Nobody seems to know for certain the definitive answers to these questions and the criteria seem to be arbitrary. According to more than one team website staffer, the cutoff for images of retired players right now stands at 1992-93 — Shaquille O’Neal’s first season in the league. And social media is an area they’re still grappling with as the deadline approaches.
However strict the boundaries, overhauling the architecture of these sites is a painstaking process that has a lot of talented web people around the league very stressed out. The NBA has built and furnished each team with a website “wire frame” that will take the place of the existing, much more sophisticated site. The wire frame is a rudimentary version of the site, without a lot of the snazzy technology we’ve grown accustomed to seeing. As a result, each of the 30 team sites will look virtually identical.
It looks like those “new” sites are in place. I’ve looked around at a few team sites, and while they may have old players (from decades ago), most traces of modern players have disappeared. They do list the names of players on the team under the “team” tab, but otherwise, the players seem almost entirely absent. And for what reason? Intellectual property shouldn’t be part of a labor fight. It’s got nothing to do with that. The whole thing just seems silly.
If you’re a sports fan, complaining about or criticizing sports officials, referees, umpires, etc. is often a part of the pastime itself. And, of course, some of the complaints are often exaggerated (to say the least). While many refs have learned to be rather stoic in the face of criticism, it appears that NBA ref Bill Spooner is going in a different direction. He’s suing a Minnesota Timberwolves beat reporter, Jon Krawczynski, for defamation over a tweet claiming that Spooner had promised to help Minnesota get back two points it may have lost to a bad call. Now, assuming that Spooner made no such statement, this certainly could be defamatory. Whether or not it was actually malicious, or whether or not any actual harm came from it seem like open questions. Instead, all this is doing is drawing that much more attention to the original comments and to Spooner’s reaction. Perhaps just staying stoic is a better option.
What is it with sports leagues that think they have the right to deny anyone from making factual statements? We’ve seen it (repeatedly) with the Olympics and we’ve seen it with the World Cup… and now we’re seeing it with the NCAA men’s basketball tournament, better known as March Madness. This week, of course, some of the games will be played in Syracuse (including, I feel the urgent need to mention, the surprise of the tournament, my alma mater Cornell), and jsl4980 was the first of a few of you to send in the news that local businesses are being told they cannot mention the fact that the tournament is being held there. No local businesses are allowed to “welcome” fans or players for the event. They can’t mention the NCAA event is happening, or that we’re at the “Sweet Sixteen” level.
Of course, that’s all according to the NCAA, which is basically lying. They’re abusing the rights that trademark law gives them to try to restrict free speech on factual information, in a misguided effort to squeeze more money out of sponsors, by pretending that only sponsors can mention the event. But trademark law does not give you blanket control over the trademarked terms — and presenting factual information, or welcoming people to a city by mentioning an event that is absolutely happening there should not be considered trademark infringement in the slightest.
Apparently, in the past the NCAA wasn’t as abusive of trademarks, but it’s learned a thing or two by watching how other sporting events abuse trademark law, and now everyone seems to be bending over backwards assuming that just because the NCAA forbids something that they have the legal right to do so.
It took me a second viewing before I spotted it. The commercial itself plays on the idea of “what if everyone could experience luxury items” showing various examples of “luxury” items being used in more everyday settings: yachts in driveways, cops eating caviar and… some guys shooting hoops with a “luxury” basketball using the typical Louis Vuitton markings that you see on LV purses/handbags/etc.
Louis Vuitton is notoriously (and ridiculously) aggressive when it comes to trademark infringement. A couple years back we wrote about LVMH (parent company of Louis Vuitton) suing a Darfur fundraiser for creating a t-shirt of a Darfur victim “pimped out” to look like Paris Hilton, including a designer handbag with symbols made to look like the LV symbols.
So, yes, that’s exactly what this lawsuit is about. DSchneider points us to the Consumerist’s article laying out the details and I’ve embedded the lawsuit filing below:
Frankly, this lawsuit is ridiculous. LVMH is claiming that people might be confused? In what world? Seriously. In what world is anyone going to view the Hyundai commercial and think that it implies any kind of LVMH endorsement of Hyundai. It’s a joke — and any moron in a hurry knows that the LV basketball isn’t a sign that LVMH is working with or endorsing Hyundai.
JJ sent in yet another story of intellectual property claims getting in the way of what actually makes sense. At the NBA all-star event, 5’7″ NBA player Nate Robinson surprised a lot of people by winning the slam dunk competition, which brought a lot of attention to his “alter-ego” Krypto-Nate, something of a play on another player dressing up as Superman. The NBA (reasonably so) thought it would be fun to offer special t-shirts, in the color green, with the “Krypto-Nate” name on the back… until issues surrounding potential fights with DC Comics, owners of certain IP around Superman, came into play. The story isn’t entirely clear concerning who made the final decision to back down from the promotion — and, it may have just been folks at the NBA hoping to do future deals with DC Comics — but the planned promotion was clearly shelved and worries about IP issues were the apparent reason. It’s not clear that DC Comics would have had any actual legal claim on such a shirt, but just the fact that IP worries over such an obvious and reasonable promotion caused it to be killed (once again) highlights the ridiculous impact of IP laws gone nuts.
Every year around this time, you can be sure of two types of stories: the first will be about how much productivity is lost thanks to March Madness (NCAA basketball tournament, for those who don’t know) and the second is about how the customary March Madness pools are probably illegal gambling. This year, it’s been turned up a notch, thanks to reports like this one in PC World claiming that the FBI is looking into the brackets available on Facebook thanks to a CBS Sportsline app. From reading the article, you’d think that the FBI is spending valuable resources trying to track down your office pool or the pool among your college buddies. Except… the article doesn’t quote anyone at the FBI or even indicate that it tried to get the FBI to comment on the matter. It merely points to a Chicago Tribune article that says Facebook may face “scrutiny,” but also provides no proof. That one at least has an FBI quote, but it’s clearly in response to a question from the reporter over whether or not such pools violate the law — not about whether the FBI is actually investigating Facebook.
The PC World report also points to a blog post saying that Facebook is coming under FBI scrutiny, but again provides no proof, other than some unsourced conjecture about the FBI “loitering” around Facebook — and another link. This one goes to a report at a site called Online Casino Reports, which also gets a quote from the FBI — but again, it appears to be in response to a question about the legality of betting pools, but not claiming that there’s any sort of ongoing investigation. While there’s a chance it’s happening, there seems to be a bunch of folks reporting on this with no actual evidence that the FBI is looking at this. The only quote from the FBI came from the Chicago Tribune and was clearly in response to a question about the legality of betting on March Madness, not about any investigation into Facebook. So, chances are, the FBI isn’t going to burst in on Mark Zuckerberg for putting a couple bucks on North Carolina to win it all — or on you for picking Cornell (go Big Red) to beat Stanford this Thursday in the opening round, but if you want to be safe, maybe don’t bet any money on it in the first place.
