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[studes]

If I publish an aritcle, in a magazine or on the web, introducing a new baseball statistical formula, is the formula protected by copyright law?

Specifically, can someone else use the formula in their own article without my permission?  I know the article is copyrighted, but does use of the formula in another public work require my approval?

The data itself is public, but the way I put it together is unique.

[Isaac]

Copyright will not protect your formula.  Sec 102(b) of Title
17 of the US Code says that copyright does not extend to any
idea, concept, procedure process, method of operation,
principle, discovery (among other things).

[studes]

Thanks very much, Isaac.  That's what I thought.

This is a very helpful site, by the way.

[tangotiger]

Just to give some background, I developed a baseball formula (which I call Leveraged Index), which attempts to establish the degree of impact any event has in baseball, based on the game context.

The question that came up in my discussion with studes is how far my IP rights are extended.

Ok, I developed a formula, and, as far as I've read, algorithms are not protected by copyright (though I suppose I can take a patent out on that).  Here are the questions:

1 - Can someone develop a similar algorithm?  

2 - I'd make the case that replicating the core algorithm is one thing, but how I expressed my idea, by setting the random situation to 1, and describing everything in terms of leverage to that situation would be my IP.  Therefore, the presentation of my idea should be protected.    Am I right or wrong, or somewhere in between?  As an example, here is an article that uses this expression of idea:
http://www.tangotiger.net/HOFrelief.html


3 - Even if the above is not protected by IP, would the title of such expression of the result of the algorithm be protected?  Can someone use something called, or similar to, Leveraged Index, to denote something virtually the same as what I'm presenting?  Or, is this a trademark issue?


I agree with studes that this is looking like a great site.

Tom

[Isaac]

If by "IP" you mean protectable property such that you can
exclude others from using it without your permission, the
details of how to apply your formula are not protectable by
copyright.  Your description is copyrightable, but not the
method described.  In fact, if it turns out that there is only
one way to describe your method, that description will not
be protected if it prevents someone from using the method.

Titles, names, short phrases are generally not protectable by
copyright.

[JSonnabend]

Titles, names, short phrases are generally not protectable by copyright.

But they may be protected as trademarks if used as such.

- Jeff

[tangotiger]

This sounds like virtually every algorithm, system process and black box ever devised, regardless of the field, is not property of anyone.  I have a friend that, as an employee of a stock-trading firm, wrote a black box to facilitate stock trading.  What I'm hearing here is that he should be able to replicate that program if he so wishes (though I suppose he can't bring the documentation with him, as that documentation would be output that the firm owns).  Unless someone applies for a patent, this sounds like everything in this algorithm field is public property.

***

Your description is copyrightable, but not the method described.  In fact, if it turns out that there is only one way to describe your method, that description will not be protected if it prevents someone from using the method.

Perhaps you can add a little more clarity to your above statement, while noting my text below:

The basic concept I have is by definition describable in only one way: how much does the win expectation of the game move, based on the game context.  The closer and later the game, the higher the degree to which the outcome of the game will change.  This is true in all facets of life.  What's the change in likelihood of you getting into an accident if you wait until the light turns yellow before crossing the road.  How much more likely will death occur at age 80 than age 30.

How you go about this, the actuarial process, would be much different.  I'm taking it that the actuarial process is also nothing but algorithms, and therefore, not IP?

So, I have my actuarial process to go about establishing this Leveraged Index.  I have 4 different spinoffs of the same core concept.  It sounds like if I describe exactly how each of the spinoffs work, it will become apparent that there is only one way to program each of the spinoffs.  And, based on your statement, it sounds like if I describe my method, and if my description shows that there's only one way to do it, then my description will also not be protected.

***

One final note, somewhat related to the above, and about baseball.  

There are several firms that collect the pitch-by-pitch accounts of all games.  They are coded in a very specific way (though each firm will code it differently).  It is a certainty that I can transform the account of one firm into the system of another firm.  As far as I can see, all this is data, and data is not copyrightable.

All these firms all make you sign an NDA, and that you can't use this data for commercial purposes, and you can't share this data with others.   As far as I can see, the agreement is basically unenforceable, right?  I mean, they can sell this data to me, and I can transform it into my own system, and sell it outright as well.  Am I wrong?

It sounds like there's no protection for the "sweat of the brow".  The only way for these firms to make money is not on the selling of the data, but on producing something that others didn't think of.  But, once they produce it, it's fair game.

Tom

[Isaac]

I have only suggested that formula cannot be protected by
copyright.  Perhaps application of the formula are protectable
by patents and sometimes formula are protectable as trade secrets.

I have some doubts that a formula that has the computation of
some number as the final output is patentable, but that does
not mean that skillful drafting cannot accomplish adequate
protection for practical uses of the formula.

In the event of a formula produced at work, my first concern
would be whether the employer could claim a trade secret interest
in the formula.  Just because you have the details memorized
rather than written down does not mean that you have the right
to disclose proprietary information.

[tangotiger]

Thanks again for your response.

...sometimes formula are protectable as trade secrets.

Thanks, I'll check out to see how "trade secrets" applies in my case, and what kind of protection that offers.

I have some doubts that a formula that has the computation of some number as the final output is patentable, but that does not mean that skillful drafting cannot accomplish adequate protection for practical uses of the formula.

Well, it wouldn't just be some number, and it's not just a formula.  It's a complex algorithm that produces a large set of numbers.  Nonetheless, you point is well-taken.

In the event of a formula produced at work, my first concern would be whether the employer could claim a trade secret interest in the formula.  Just because you have the details memorized rather than written down does not mean that you have the right to disclose proprietary information.

This seems to be the angle I'm looking for then.  By declaring that I have proprietary information, say Leveraged Index, then I could put a disclaimer on my site that says "Enter this site, and you agree that all materials viewed on this site is proprietary to tangotiger.net, and you shall not disseminate such information" (or some such).  Essentially, by my claiming proprietary interest over my own material, and by obligating the user to accept an NDA, I'm getting the protection I want.

On the other hand, I've made my entire site available for public use, so, it seems that my ability to reclaim proprietary interest won't be an easy (or even possible) task.

Thanks again for taking the time.

[JSonnabend]

All these firms all make you sign an NDA, and that you can't use this data for commercial purposes, and you can't share this data with others.   As far as I can see, the agreement is basically unenforceable, right?

I don't think that conclusion is warranted.  There is no policy reason of which I'm aware that would render the agreement unenforceable.  You are free, after all, to collect the data yourself.  If you choose to benefit from the fruit's of someone else's labor, the restriction should be seen as reasonable.

Perhaps someone can chime in who has addressed this issue more directly.

- Jeff

[tangotiger]

Didn't the Feist ruling establish that the "sweat of the brow" is not a valid protection?

http://floridalawfirm.com/things.html

U.S. Supreme Court decision on Information Law. It stands for the proposition that "facts cannot be copyrighted." Still, the original selection and arrangement of facts can be copyrighted. Here an unanimous Supreme Court held that the alphabetical listing of names in the white pages of the phone book was not subject to copyright because it was an unoriginal selection and arrangement of mere facts, the names, addresses and phone number or everyone in a certain geographical location

Therefore, if you have companies that arrange pitch-by-pitch accounts of ball games, what is protected is how they arrange that data.  However, there would be nothing stopping me from re-arranging that data in my own style and system.

Important Information and Computer Law case which extends and enlarges upon Feist to include the Yellow Pages of the phone book as unprotected "fact." The computer copying and republication of yellow pages was found to be legal. The sharply divided appellate court in an enbanc rehearing reversed an earlier decision, provoking a bitter dissent from Circuit Judge Hatchett. This case significantly broadens the Fiest decisions' "factual exception" to copyright.

Furthermore, I can't see how they can claim "proprietary information".  It is not their property, since they are making an account of what actually transpired.  It's a log of events.

If these companies can curtail the leagues "this broadcast cannot be disseminated, rebroadcast or reproduced without express consent" on the basis that factual events can be reported on, then I don't see what's stopping anyone from grabbing the sweat of the brow of that person, and re-arranging it.

The recent case would seem to uphold my position:

Here the 2nd Circuit applies Feist to deny a claim for theft of basketball scores because the events of the NBA games were facts unprotected by copyright. However, this opinion suggests that an exception to Feist should exists for "fresh facts" under an old common law doctrine of misappropriation of "hot news". In my opinion this an attempt to resurrect the "sweat of the brow" doctrine rejected by the Supreme Court in Feist, to provide protection to facts where the facts are new, and their free taking (called "free riding" by the court) would destroy the economic incentive to gather the facts in the first place. The 2nd Circuit has added "time and tragedy" as elements to avoid copyright pre-emption of state law misappropriation claims, and thus to circumvent Feist. We'll see if any of the other Circuits decide to follow this idea, or if the Supreme Court will ultimately be persuaded to allow this exception to Feist. I doubt it.

[JSonnabend]

Didn't the Fesit ruling establish that the "sweat of the brow" is not a valid protection?

That's not the point here.  We're discussing an agreement you entered into with the company providing the data.  The agreement provides an independent restriction on your use of the data, unless the contract provision is void for some public policy reason.  If you use the data in contravention of the agreement, there may be a breach of contract cause of action, not a copyright infringement cause of action.

Maybe I'm misunderstanding something.  Did you enter into an agreement with the data provider?  If not, then we have a different issue.

[tangotiger]

Right, I agree that this is not a copyright issue.

The issue is that the company is providing data, and is making you sign an NDA.  However, how can they do that?  This is not proprietary information.  The only thing proprietary about what is being supplied is the arrangement of the data (and that is protected by copyright).  Therefore, the only thing that they can prevent you from doing is redistributing the data, as-is.

However, regardless of what you sign, you can't be precluded from (massively) re-arranging the data, and redistributing it yourself, since the underlying data itself is not proprietary information, but public information (i.e., the plays of the game).  The data itself is public information, so how can you be precluded from redistributing it?

How would this be different from getting stock prices for the last 10 years from a guy who spent 5000 hours compiling it, and he gives it to you in a certain format, and you redistribute that data in your own format?  If he puts in a restriction in the NDA, I'm saying that restriction is unenforceable.  "I'm giving you public data, but you can't give it to anyone else."  

[Isaac]

If I were to simply give you some data with a label on it
saying do not distribute, then you likely are not bound not
to distribute.

But if we exchange meaningful promises i.e. You receive the data in exchange
for $100 and a promise not to distribute the data, then you
have a contract that can be enforced under the law.

I'm not sure why this is hard to grasp.  People agree not to
reveal things in exchange for money all of the time.

[tangotiger]

Isn't there a difference between receiving privately/firm-owned data and publicly-owned data?

The Yellow Pages can sell me a disk of phone numbers with a promise from me not to redistribute the data, but I don't see how I can be held to that.  The data is not owned by YP, and so, is not theirs to establish boundaries.  

The way I see it, copyright protection is the only protection providers of public information have (i.e., arrangement of data), regardless of the NDA that they get others to sign.

I'm very surprised to hear that I am wrong.