MLB’s Attack On Fan-Created Podcasts

At the request of Major League Baseball Advanced Media, Apple removed several baseball-related podcasts from iTunes on Wednesday. HardballTalk broke the news Wednesday morning when Aaron Gleeman, one of HBT’s lead writers, learned that his Minnesota Twins-related podcast known as “Gleeman and the Gleek” had been taken down by Apple. By midday, the list had grown to include another Twins-related podcast “Talk to Contact,” a Yankees-themed podcast on the site “It’s About The Money, Stupid,” and the Cubs-centered podcast on “Bleacher Nation,” among others. Awful Announcing catalogued the reaction on social media, which was swift, fierce and uniformly negative.

MLBAM publicly released the letter it Apple after news of the podcast takedowns spread. HardballTalk published it:

As we have done in the past, yesterday we notified Apple about certain podcasts on the iTunes Store whose titles and/or thumbnails include infringing uses of trademarks of Major League Baseball and certain Clubs.  And, as we have done in the past, we asked Apple to have these trademarks removed from the podcast titles and thumbnails. Although we did not ask for or seek to have any podcast removed from the Store, it has come to our attention that Apple removed them.   Given our many years of experience in notifying Apple about trademark issues on the Store, we trust that removing the podcasts was an oversight, and ask that you please look into this matter as soon as possible.

Thank you for your cooperation.

This is nonsense.

Like many trademark owners, MLBAM and the 30 MLB clubs do not like to see their name or logo or other distinguishing feature used by a third party. They claim that such use infringes or dilutes their registered trademark. But legally, a reference to MLB or an MLB team doesn’t infringe a trademark unless it’s used in a way that is likely to cause confusion. And dilution occurs only when a nationally-recognized mark is tarnished when used by a third party for its own purposes.

Also, under the fair use doctrine, courts have consistently held that third parties can use a trademark in their materials as a reference if avoiding the trademark name isn’t easy or realistic. In other words, it’s perfectly fine for “Gleeman and the Gleek” to describe their podcast as about “the professional baseball team that plays in Minneapolis” but that gets cumbersome pretty quickly. So the law says it’s okay to describe the podcast as relating to the Minnesota Twins.

MLBAM is bullying these fan-driven podcasts because it has the resources to do so, even if the law doesn’t support its claims. Apple’s decision to take the podcasts down — as opposed to notifying the podcast creators that MLBAM had raised a claim of infringement — likely speaks to the strong business relationship between the two companies. MLBAM’s At Bat app is one the ten highest grossing iTunes apps of all time.

Whatever the legal issues, however, MLBAM’s effort to crack down on fan-created podcasts flies in the face of the league’s efforts to attract and keep new and younger fans. We’ve all seen the numbers. Baseball fans — folks who watch games on TV, listen to games on the radio, and buy tickets and merchandise — tend to skew older than fans of other professional sports. That’s why MLB launched the Fan Cave — to give baseball a hip, edgy look and feel that would attract younger fans.

Leave the podcasts alone, MLB. Even if you win, it’s short-gain for long-term pain.