The change was subtle. Just a random, numbered bylaw in a verbose Terms of Service agreement posted on the National Hockey League’s official website, which was updated this week. The League calls it “boilerplate” and nothing that targets anyone one, or any other website, in particular – at least at the moment.
But the ramifications have the burgeoning hockey advanced stats community on edge.
NHL.com is a clearinghouse of news, images, video and above all else, numbers. Their stats pages are essential for chronicling nearly every measurable number collected during a season, with archives that go back decades. Their box scores for nightly games include official game summaries that break down individual stats, ice time and faceoff figures. There are also play-by-play sheets that detail every on-ice incident, from shots to stoppages in play.
That information is shared through many sports media sites by providers like Stats LLC, which maintains stats pages for Yahoo Sports and NBC Sports, for example. But it’s also harvested by other websites through software that pulls the information from NHL.com. That’s the case for sites like Behind The Net, Extra Skater and others that are at the forefront of the advanced stats revolution in hockey.
Which brings us back to the subtle change in the NHL’s Terms of Service this week, which reads:
For comparison’s sake, you can see that the previous official ToS of the NHL didn’t have any of this language about prohibiting "unauthorized harvesting of content."
It’s the timing of it that set off alarms. It’s the Summer of Fancy Stats, after all, as bloggers like Tyler Dellow and executives like Kyle Dubas have been gobbled up by NHL teams for their advanced stats prowess. And hockey fans have handed many clicks to sites like Extra Skater, a clearinghouse of NHL numbers as well as the requisite Corsi and Fenwick metrics.
(Darryl Metcalf, creator of Extra Skater, declined to comment for this story.)
In some ways, this is boilerplate stuff. ESPN, for example, has had this on its site for quite some time:
Additionally, you agree not to access, monitor or copy, or permit another person or entity to access, monitor or copy, any element of the Disney Services using a robot, spider, scraper or other automated means or manual process without our express written permission.
"You could read that as, ‘You agree not to access...any element of the Disney Services using a...manual process without our express written permission,’” said Gabe Desjardins, creator of Behind The Net.
Or someone using a website like NHL.com’s data for commercial purposes, which was a concern cited by the League’s legal department when we contacted them for this story.
Which brings us back to a basic question: Who owns the numbers?
We’ve seen pushback on booming sub-industries before in sports.
In 2006, fantasy and rotisserie baseball were growing as rapidly as the Internet would allow. Then came the pushback: Major League Baseball and the MLBPA gave exclusive rights to MLB Advanced Media to “use, and to sublicense to others, Major League Baseball player group rights for the development and creation of on-line games, all other online content, including fantasy baseball and interactive games, as well as all wireless applications including cell-phone enabled games.”
Basically, MLB wasn't claiming it owned the stats. But couple the stats with a player's name, and, well, they called foul.
At the crux of many of those complaints is the claim that profits are illegally being made by companies that are unlicensed. It’s not the use of the statistics, in and of themselves, that is at issue, but rather using stats in conjunction with a player’s name or player number and team that is at the heart of the intellectual property debate.
In that sense it’s a clever way of killing the golden goose: You can use the stats all you want, but stats without the ability to associate them to a player is nothing more than a collection of numbers that serves no purpose in a fantasy league format. For that purpose, the new agreement brokered by the MLBPA and MLBAM requires that a business be licensed to do so—for a fee.
St. Louis-based CBC Distribution challenged MLB on that decision after being denied a new licensing agreement. In August 2006, U.S. District Court Judge Mary Ann Medler in St. Louis ruled in favor of CBC. Via ESPN:
Major League Baseball claimed that intellectual property laws and so-called "right of publicity" make it illegal for fantasy leagues to make money off the identities and stats of professional players.
But even if the players could claim the right of publicity against commercial ventures by others, Medler wrote, the First Amendment takes precedent because CBC, which runs CDM Fantasy Sports, is disseminating the same statistical information found in newspapers every day.
"The names and playing records of major-league baseball players as used in CBC's fantasy games are not copyrightable," Medler wrote.
So if they can’t copyright the data and they can’t copyright the players, the next step is to make it a giant hassle to acquire and assemble that data.
Which, it would seem, the new provision in the Terms of Service sets the table for the NHL to do, and for one rather specific reason: To then license those numbers to sites that use them, promising to deliver them in an easy, less-time consuming and Terms of Service-friendly manner. Which is a logical end-game should a site like Extra Skater become a massive success.
The League claims that’s not the case. They know sites are harvesting data from NHL.com with software; they say the provision was “not added to counter anything that we know of at this moment.”
There’s another possibility, of course, that some fans considered when the “Terms of Service” change was first noticed by Kyle Alexander, an editor for Tampa Bay Lightning blog Raw Charge:
— 67Sound (@67sound) August 13, 2014
Could this be a first step in the NHL making its official site Fancy Stats Central for fans? After all, with all the player tracking they plan on doing, it seems the League believes there's money to be made in advanced metrics.
Desjardins said there’s one thing that separates the work his site does from what NHL.com will offer.
“As long as there's still a conflict over which stats can be used in arbitration hearings, I don't expect NHL.com to add a lot of details,” he said.