Take Me Out© to the Ballgame®

Imagine having to swipe your credit card to debate whether Justin Verlander or Rich Harden has the better fastball? Or flip cards with a pal on the sidewalk? Or endure another of Grandpa’s stories about the glory days of the Brooklyn Dodgers?

Sensing a way to make even more money than it already does, Major League Baseball has tried to force people to start paying for their fandom by imposing licensing fees on “fantasy” baseball leagues to use major league players’ names and statistics. Happily for fans and free speech, Major League Baseball was tossed out of the game this week in the Supreme Court.

In fantasy baseball, fans manage imaginary teams made up of actual baseball players. Success depends on how real-life players perform in actual games. Fantasy sports have become big business. Some big leagues run by large companies pay Major League Baseball licensing fees. Other leagues do not.

Major League Baseball sued one of the companies that did not, the St. Louis-based CBC Distribution and Marketing. The suit, which had the support of the National Basketball Association and the National Football League, claimed fantasy baseball is an infringement on intellectual property. CBC said that it had a First Amendment right to use the players’ names and statistics.

The St. Louis-based United States Court of Appeals for the Eighth Circuit ruled for CBC. Any claims that the company violated the league’s right of publicity, the court said, were trumped by the First Amendment. Reciting and discussing information about Major League Baseball is speech of “substantial public interest,” the court said.

This week, the Supreme Court turned down Major League Baseball’s appeal of that decision. In doing so, the court was not saying anything about the merits of the case; it turns down cases for many reasons. The effect, though, is to leave in place an important pro-free-speech ruling.

In recent years, corporations have been aggressively pushing the bounds of intellectual property — extending the length of copyrights to unreasonable lengths, for example, and patenting seeds. In the case of fantasy baseball, the courts have rightly cried foul.

The biggest fantasy in this case was Major League Baseball’s claim that its fans should pay to talk about the game.