Ed Bain lawsuit

[PaceAdvantage]

Wow, is this quite the read! Lots o' accusations....should be a very interesting case if it gets far into the system....

http://edbain.com/comp.htm

Discuss amongst yourselves.....

[sjk]

Who could be critical of Equibase after reading that?

[dav4463]

Could someone explain it in normal language?

[Overlay]

In paragraph 12, I notice the suit used the term "mythology" in describing Ed Bain's handicapping approach, when it would appear that the intended word was "methodology" (as in paragraph 13 just below it). (Freudian slip? Maybe Ed should find another attorney.) :D

[sjk]

I think the key elements are the alleged cyber-sabotage and the $50 million.

Of course we all love Equibase and they do not have and cannot get $50 million so...

[john del riccio]

if any of this is true it is very very sad.

john

[PaceAdvantage]

In paragraph 12, I notice the suit used the term "mythology" in describing Ed Bain's handicapping approach, when it would appear that the intended word was "methodology" (as in paragraph 13 just below it). (Freudian slip? Maybe Ed should find another attorney.) :D

I caught that myself during my first reading of the brief...you'd think SOMEONE would have caught it before it was filed....but anyway, that's a minor point....



Note to self after reading the above Bain accusations: Never, never, NEVER f**k with Equibase...

[highnote]

I smell a big out-of-court settlement where no one is allowed to discuss the settlement.

[JustRalph]

bain will play hell proving any of it.

Those IP addresses are blamed for other things on the net. Not just the bain stuff. Who knows who is really doing it. You can spoof an IP address.......

[Tom]

As a customer of two of the defendents, I am shocked.
This has long term ramifications on this industry.
Now, how do you all feel about BRIS having your SS number?

I hope Cramer talks about this on his web page.
If 10% of it is true, I hope the FBI turns the tables on EB.:mad:

[highnote]

If 10% of it is true, I hope the FBI turns the tables on EB.:mad:

EB -- EquiBase or Ed Bain?

[Tom]

EB -- EquiBase or Ed Bain?

D'oh!
Equibaseless.

I bascially believe Ed Bain.

[gregrph]

(Editor's notes in italics)

Could someone explain it in normal language?

I just read this VERY interesting complaint and although I am not a lawyer, I do believe that I understand what MIGHT HAVE happened AS LAID OUT BY MR. BAIN.

Ed Bain has been selling his own personal handicapping information based on his own methods. BRIS, Equibase and The Jockey Club did not like this and threatened to shut him down if he did not pay $5,000/month to Equibase for data. I believe he then went to BRIS and purchased his data for $500/month which is available to any other individual at that price. Equibase then threatened to shut him down if he did not pay them which he did not.

Approx 1 month later, Ed's 4 computers were infected with various virii that stole his data, hid their presence(sp?) and wrecked his operating system. Ed bought a firewall (not sure if it is hardawre or software based) that logged the interenet addresses of hundreds of attacks. His Paypal account was broken into and administrator privleges(sp?) created. No money was stolen but could have been. The internet address of the breakin into Paypal was traced to the same ip address that planted the virii on his computers. The ip addresses are registered to the defendant(s).

I think I have the gist of the lawsuit correct. Your mileage may vary!

If the facts are correct as presented, I think that this is a terrible thing that has happened to him. We DO NOT know the other sides stories so it is too early to make a fair judegment.

Greg

[douglasw32]

Isn't this the only provider of this data ? drf, tsn etc, doesn't it all come from here in some way ?

[highnote]

Ed Bain should start a legal defense fund. A lot of people probably would donate.

It will be interesting to hear the defendant's side of the story.

[ezrabrooks]

I can't believe that this was a high revenue source for HDW, so have a hard time accepting all of the claims set forth in the Petition. On the other hand, Ed Bain seems like a really nice guy...so, if he thinks he has been done wrong...let him have his day in the court house.

Ez

[betovernetcapper]

I've used HDW for years and can't picture them engaging in any kind of Internet sabotage. There's just no way.

[highnote]

I've used HDW for years and can't picture them engaging in any kind of Internet sabotage. There's just no way.

It's kind of like racehorses -- you think you have the fastest horse and I think I have the fastest horse. We put them on the track to find out.

That's why we have courts of law. Let them duke it out in court.

I don't think anyone who is a regular on this board is too surprised. Many of us feel Equibase might be a monopoly. Maybe the courts will have an opinion on this, too.

Didn't CJ have trouble with a data provider awhile back?

[highnote]

Note to self after reading the above Bain accusations: Never, never, NEVER f**k with Equibase...


Or .... never, never, NEVER f**k with Ed Bain. :D

[ranchwest]

I've used HDW for years and can't picture them engaging in any kind of Internet sabotage. There's just no way.

I once worked for a man who had more friends than one could imagine, all the way up to a President of the United States.

Then I found out he sometimes did business by showing people his Uzi.

I'll wait to see what the courts have to say.

[linrom1]

The facts as presented in the Ed Bain's lawsuit are quite believable considering all the impediments that Equibase has taken to make free data such as results charts available to users and statement made by its management regarding data exclusivity.

[betovernetcapper]

We'll all have to wait for the courts, but this not only seems out of character but just irrational. I just don't see any motive for HDW to hijack Bain's computers and PayPal account.

[PaceAdvantage]

Just so you're all forewarned, I will not hesitate to delete or edit any posts where I think the poster fails to take into account the VERY IMPORTANT fact that none of this has yet to be proven in any way whatsoever.

Reply #13 is the first such post.

[Steve 'StatMan']

A lot of allegations, and not just about what happened to his computers. Imagine lots of words and things went back & forth between most of these parties. Will be interesting to see how this unfolds - as someone else mentioned, if that will even be made public, in case of a private, out-of-court settlement, etc.

[andicap]

Aside from whether Equibase et al attacked Bain's computers there is the issue of whether Bain can legally use the BRIS proprietary data for his own personal profit.
Remember BRIS shutdown John Marrone and basically took over his business (MULTICAPS) when it discovered Marrone was using BRIS data in his program in the mid 90s.

Here is the relevant clause in the complaint:

"As.a member of the general public, Ed Bain accessed Defendant B.R.I.S.’s publicly available website and downloaded data that is made available to the general public for a determined fee which was paid by Plaintiff Ed Bain in order to provide information that was used by Ed Bain’s and EDBAIN.COM LLC’s websites for the handicapping on-line software provided to the public by Ed Bain and EDBAIN.COM LLC

The fact that BRIS sells the data to the "general public" does not necessarily mean Bain can legally turn it around and use it in his own business without permission from BRIS or Equibase, the originator of the data and the copyright holder. You have to get a license from those companies in order to resell their data no matter how you finesse it for your own purposes. Works just like patents. You can't take a John Grishom novel, make them into a book of poems and sell it as your own work because you put a new spin on it.

Now you can argue that Equibase and its partners (HDW, BRIS) have a monopoly on the data business such that they have an unlawful stranglehold over Bain and everyone else who tries to compete with them. And asking for onerous amounts of money ($50K was it or $60K?) for a reseller license should certainly raise legal eyebrows.

That may be so but would a court go so far and rule that Equibase's monopoly violates Sherman? We certainly hope so. But I'm no attorney.

AND -- if Bain was violating copyright laws by reselling the BRIS data, why didn't Equibase, BRIS, et al just go to court and get their OWN injunction shutting down Bain instead of allegedly committing computer fraud?

While Bain wants a jury trial the important element here is whether the Court issues an injunction against Equibase et al. That would mean the Court would believe Bain has a reasonable chance to prevail on the facts and probably send Equibase scrambling to settle out of court.

I'm betting the Court throws the case out -- partly because of the difficulties of proving Equibase et al is behind the virus attacks -- but I hope I'm wrong.

And there's no way Cramer will talk about it on the web page considering it's under litigation.

[highnote]

You can't take a John Grishom novel, make them into a book of poems and sell it as your own work because you put a new spin on it.


I'm not so sure about that, Andy. If the derivative work is different enough then it might be OK. It's certainly OK for a composer of a piece of music to borrow from other pieces of copyrighted music as long as the new piece is different enough.

Same with horse racing data. Ed Bain's ideas seemed pretty original to me. I've never seen his product, however. Maybe he didn't change the look of the raw BRIS data in the product he sold?

If you sell speed ratings based on comma-delimited result charts you download from BRIS, I don't see where there is a problem because you are making a derivative work based on public domain information. If you start printing a lot of the raw data, like race comments, which are subjective, for example, then maybe you are in violation of the copyright.

I don't think facts about a race are copyrightable. I could be wrong. I am not an attorney.

I hope the case goes forward and the courts spell out clearly what is and what isn't copyrightable with respect to raw racing data.

[cj]

This is very ugly, even if only some of it is true. I tend to believe a lot of it is true. I hope we hear the whole story. I won't hold my breath though.

[Gibbon]

...virii... Plural -- viruses

I've used HDW for years and can't picture them engaging in any kind of Internet sabotage. There's just no way.
Having had extensive dealings with both Ron Tiller and Richard Mullikin in the past and most recently some accounting discrepancies – I can personally attest to their integrity and exemplary business ethics.

In our beloved game, HDW stands without peer! Should Ron ask, I most certainly will come out and unabashedly, unashamedly support HDW in any way.

[Hajck Hillstrom]

Just so you're all forewarned, I will not hesitate to delete or edit any posts where I think the poster fails to take into account the VERY IMPORTANT fact that none of this has yet to be proven in any way whatsoever.

New racing parlance, or at least a new spelling: The Bain of my existence.

Carry on, Carry on,

Hajck

[spilparc]

I read the whole complaint and found it all somewhat believeable. But who knows? How on earth can he prove the Jockey Club planted viruses on his computers?

But what made me laugh out loud was the part where they're looking to get 50 million dollars. You might as well go for the jugular I suppose. But 50 million is a joke--isn't it?

[kenwoodallpromos]

This case could get real interesting if the court rules that Equibase did not have the right copyright the racing information!

[rokitman]

Sounds like sumbody has a bad case of The Paranoias :ThmbUp:

The Jockey Club Virus Assault Team is dumb enough to send out viruses from their own computers? And whatever "higher up" that ordered the hit that destroyed his computers, along with his mind, forgot to think of telling the boys to go down to the library to do that?

I'd really like to see Equibase's monopoly get broken but this aint the case that's gonna do it.


http://www.projecthoneypot.org/i_fe63bbdf3049ec4ca7e1f980fd407d3f

[cj]

Dumber crimes than that have been committed.

[andicap]

I read the whole complaint and found it all somewhat believeable. But who knows? How on earth can he prove the Jockey Club planted viruses on his computers?

But what made me laugh out loud was the part where they're looking to get 50 million dollars. You might as well go for the jugular I suppose. But 50 million is a joke--isn't it?

Yeah it's a ridiculous number. About as silly as expecting a big payoff from McDonald's because you don't know their coffee is very hot.

[highnote]

I think the $50 million figure is standard. There's probably a legal name for the procedure.

My wife got in a car accident ( basically a fender bender) in NYC and we were sued for $10 million.

It ended up that the fault was 50/50. Our insurance company paid the bill -- probably a few thousand.

[ranchwest]

I'm not an attorney, but in reading through the filing I don't see where this will settle the copyright issue at all.

The primary focus of the filing seems to be the various forms of alleged attack. The alleged attacks would be completely apart from the copyright issue. Even if Mr. Bain did infringe on the copyright, that does not give the defendants the right to attack him. I doubt the copyright issue will ever be allowed to be a focal point at trial because I don't think either side will want this to be the battleground for that issue.

If the case is decided entirely in favor of the plaintiff, 50 million wouldn't surprise me.

In one sense, the defendants may win no matter what. If I were Mr. Bain, if I either got nothing or I got 50 million, I'd be out of the data business.

[andicap]

I'm not an attorney, but in reading through the filing I don't see where this will settle the copyright issue at all.

The primary focus of the filing seems to be the various forms of alleged attack. The alleged attacks would be completely apart from the copyright issue. Even if Mr. Bain did infringe on the copyright, that does not give the defendants the right to attack him. I doubt the copyright issue will ever be allowed to be a focal point at trial because I don't think either side will want this to be the battleground for that issue.

If the case is decided entirely in favor of the plaintiff, 50 million wouldn't surprise me.

In one sense, the defendants may win no matter what. If I were Mr. Bain, if I either got nothing or I got 50 million, I'd be out of the data business.

You might be right. That's too bad because the copyright issue is what's important to the rest of us. (And I guess we dont like the thought of someone mucking about in our PCs?)

It's interesting that neither company made much of a legal issue over the copyright infringement or lack thereof.

[Blind Pursuit]

The Jockey Club Virus Assault Team is dumb enough to send out viruses from their own computers? And whatever "higher up" that ordered the hit that destroyed his computers, along with his mind, forgot to think of telling the boys to go down to the library to do that?


Yeah, and let's make sure we plant something that he'll never be able to protect against or remove! These babies are unstoppable!


Backdoor.IRC.Flood.H
Category 1
Discovered on: October 14, 2003
protection:
Virus Definitions (LiveUpdate™ Weekly): October 15, 2003
Virus Definitions (Intelligent Updater): October 15, 2003
Threat containment: Easy
Removal: Easy

Backdoor.SubSeven
Discovered: June 6, 1999
Risk Level 1: Very Low
Protection:
Virus Definitions (LiveUpdate™ Weekly) June 9, 1999
Virus Definitions (Intelligent Updater) June 9, 1999
Threat Assessment
Threat Containment: Easy
Removal: Moderate

[ranchwest]

You might be right. That's too bad because the copyright issue is what's important to the rest of us. (And I guess we dont like the thought of someone mucking about in our PCs?)

It's interesting that neither company made much of a legal issue over the copyright infringement or lack thereof.

Yes, I think if either party was interested in a legal opinion on the data rights issue, they'd have filed suit and counter-suit.

From the Equibase side, if the courts would rule that some modification of the data was permissable then there would likely be ambiguity as to how much modification would be allowed.

From Ed Bain's side, if he lost he'd be permanently out of business.

I don't think either side is ready to submit the issue to the courts.

[Greyfox]

I think the $50 million figure is standard. There's probably a legal name for the procedure.
.

$50 million?? You're probably right. But has Ed Bain even earned $ 2 million in his entire life???? (Your guess goes here.)
The legal name for the procedure is "Screw them before they screw you."
There's something wrong with our society if he's even awarded 1/50 th of that.

[cj]

There's something wrong with our society if he's even awarded 1/50 th of that.

Aren't the awards meant to not only fix a wrong, but be punitive in nature? This way other companies are dissuaded from trying similar tactics.

[banacek]

Aren't the awards meant to not only fix a wrong, but be punitive in nature? This way other companies are dissuaded from trying similar tactics.

True, but then there was the judge last week who sued his dry cleaner for $64 million over a pair of pants.

[highnote]

$50 million?? You're probably right. But has Ed Bain even earned $ 2 million in his entire life???? (Your guess goes here.)
The legal name for the procedure is "Screw them before they screw you."
There's something wrong with our society if he's even awarded 1/50 th of that.


I think, as CJ said, the damages are punitive. If Bain is correct then he should be awarded damages. The jury will decide how much -- if it goes to court.

I don't know much about law, but I have heard that juries can be pretty generous -- especially in a David v. Goliath case.

[highnote]

True, but then there was the judge last week who sued his dry cleaner for $64 million over a pair of pants.


And rightly so -- do you know what a good pair of pants cost these days! :D

[cj]

True, but then there was the judge last week who sued his dry cleaner for $64 million over a pair of pants.

Maybe he was still in them?

[Steve 'StatMan']

True, but then there was the judge last week who sued his dry cleaner for $64 million over a pair of pants.

Maybe now those pants make his ass look fat.

[Greyfox]

Aren't the awards meant to not only fix a wrong, but be punitive in nature? This way other companies are dissuaded from trying similar tactics.

Yes.
But this is what happens.
Bain sues Brisnet.
Brisnet's legal bills go up.
Brisnet's Insurance settles for some ridiculous sum.

If they don't have insurance, Brisnet is toast.
Then no more Brisnet. No more free tote board etc.

But let's assume that they have insurance.
Brisnet's insurance goes up.
Your insurance goes up.
Brisnet off sets this expense to Tom who is a member there. Tom pays.
Ed Bain gets rich off of you and me and Tom in the long run.
And who knows it may all be frivolous. I hope Brisnet counter sues.
I don't feel sorry for Ed Bain. He'll likely get a payout, and we'll all pay.

[banacek]

Maybe now those pants make his ass look fat. But does he even wear pants under his robes?

[cj]

I don't feel sorry for Ed Bain. He'll likely get a payout, and we'll all pay.

Until the facts are in, I don't know if I feel sorry for him or not.

[ranchwest]

Yes.
But this is what happens.
Bain sues Brisnet.
Brisnet's legal bills go up.
Brisnet's Insurance settles for some ridiculous sum.

If they don't have insurance, Brisnet is toast.
Then no more Brisnet. No more free tote board etc.

But let's assume that they have insurance.
Brisnet's insurance goes up.
Your insurance goes up.
Brisnet off sets this expense to Tom who is a member there. Tom pays.
Ed Bain gets rich off of you and me and Tom in the long run.
And who knows it may all be frivolous. I hope Brisnet counter sues.
I don't feel sorry for Ed Bain. He'll likely get a payout, and we'll all pay.

Are we such a "me" society that nobody should ever be compensated because it might affect "me"? Justice be damned?

[rokitman]

Yeah, and let's make sure we plant something that he'll never be able to protect against or remove! These babies are unstoppable!


Backdoor.IRC.Flood.H
Category 1
Discovered on: October 14, 2003
protection:
Virus Definitions (LiveUpdate™ Weekly): October 15, 2003
Virus Definitions (Intelligent Updater): October 15, 2003
Threat containment: Easy
Removal: Easy

Backdoor.SubSeven
Discovered: June 6, 1999
Risk Level 1: Very Low
Protection:
Virus Definitions (LiveUpdate™ Weekly) June 9, 1999
Virus Definitions (Intelligent Updater) June 9, 1999
Threat Assessment
Threat Containment: Easy
Removal: Moderate

:D

"Ed Bain and EDBAIN.COM LLC were forced to purchase a WatchGuard firebox which is a firewall used as a protective device against viruses and Trojan horses and other computer hacker software in order to sustain the integrity of Ed Bain’s website..."

Forced in July of 2006 to get a firewall :) And, apparently, from what you pasted, no anti-virus software! At least, no anti-virus software that has been updated since 1999! The guy probably has a couple GB of malicious crap on his system and is hosting the distribution of viruses for jerks around the world.

[philsfan07]

Yes.
But this is what happens.
Bain sues Brisnet.
Brisnet's legal bills go up.
Brisnet's Insurance settles for some ridiculous sum.

If they don't have insurance, Brisnet is toast.
Then no more Brisnet. No more free tote board etc.

But let's assume that they have insurance.
Brisnet's insurance goes up.
Your insurance goes up.
Brisnet off sets this expense to Tom who is a member there. Tom pays.
Ed Bain gets rich off of you and me and Tom in the long run.
And who knows it may all be frivolous. I hope Brisnet counter sues.
I don't feel sorry for Ed Bain. He'll likely get a payout, and we'll all pay.

But what if these accusations were actually true? What if Brisnet did single handedly sabotage and ruin a guy's livelihood? If this is the truth, then Brisnet should pay through the ass.

If you think you pay now, imagine if this could go on and Brisnet was a total monopoly who was the only one allowed to offer data, software, selections, etc.. You'd have to pay whatever they damn well chose you to pay.

[highnote]

There should be multiple "Equibase-like" companies. Just like AT&T was split up. The same should happen to Equibase.

If there was competition for the "data dollars" then the quality of the data would improve or the price would come down -- or both.

Currently, the "Equibase-like" companies are BRIS, HDW, DRF, etc. They have to buy their data from Equibase because there is no other data provider.

Question 1.) Why isn't there another data provider?

Answer 1.) I guess it's because Equibase has a stranglehold on the industry.

True, Equibase is owned by all the member racetracks.

Question 2.) But why are racetracks members of Equibase?

Answer 2. ) Probably because there is no other choice.

Question 3.) Why don't racetracks have other options for distributing their data?

Answer 3.) See Answer 1.

[BillW]

T
Question 1.) Why isn't there another data provider?

Answer 1.) I guess it's because Equibase has a stranglehold on the industry.



It's not exactly a pot of gold at the end of the rainbow either (like say the Microsoft monopoly). They have a stranglehold on a business where there are not many interested in challenging them.

[highnote]

It's not exactly a pot of gold at the end of the rainbow either (like say the Microsoft monopoly). They have a stranglehold on a business where there are not many interested in challenging them.


If the barriers to entry were not so high, perhaps competitors would emerge.

That's why Equibase should be broken up into several smaller companies and then forced to compete.

[cj]

It is the usual short sightedness by the industry. They should collect the data and give it away to increase handle. Give away new data, old data, whatever.

I'm not talking proprietary stuff, just basic chart data.

[BillW]

It is the usual short sightedness by the industry. They should collect the data and give it away to increase handle. Give away new data, old data, whatever.

I'm not talking proprietary stuff, just basic chart data.

Yep, don't charge people to give you their money.

[Tom]

And the thing is, Ed was not taking any slaes from them. They do not offer what he compiled, and doubt a single one of his customers would buy the data and do it themselves. Ed added time and place utility value to the basic data.
This is why I always call them data-whores. EB saw a quarter on the ground and pushed little old ladies aside to get at it.

[Jeff P]

It is the usual short sightedness by the industry. They should collect the data and give it away to increase handle. Give away new data, old data, whatever.

I'm not talking proprietary stuff, just basic chart data.

Exactly. :ThmbUp:


-jp

.

[ranchwest]

It's not exactly a pot of gold at the end of the rainbow either (like say the Microsoft monopoly). They have a stranglehold on a business where there are not many interested in challenging them.

I wonder why. :rolleyes:

[JPinMaryland]

Sweeteyejohn's take earlier in the thread was a fairly accurate summary of the copyright law. It's not really a derivative work, in this case. It is more or less a theory based on underlying data. His theory being "who will win the race", or what the horses speed number or whatever product he's selling.

Underlying data cannot be protected by copyright and whatever case is cited for this proposition is just another example of a court getting it wrong. Equibase is putting the data into a format, and so that may be copywritten, okay but then to say that his product based on their (equibase) data is still covered by Equibases copyright??

Seems like a stretch. Could he not take it out of the comma delineated format or whatever it's in and thereby have the raw data?? The raw data is not protectible as a copyright. As a tradesecret in theory, but not in this case as the data is not a secret.

Imagine if some researcher unlooked the DNA helix and then sued those who wished to use this information to make drugs etc? Could he put the DNA code in his own format and then offer it for sale and then claim the data cannot be re-used?

Oh wait, NIH tried this didnt they? Fortunately they lost. :)

[ranchwest]

Sweeteyejohn's take earlier in the thread was a fairly accurate summary of the copyright law. It's not really a derivative work, in this case. It is more or less a theory based on underlying data. His theory being "who will win the race", or what the horses speed number or whatever product he's selling.

Underlying data cannot be protected by copyright and whatever case is cited for this proposition is just another example of a court getting it wrong. Equibase is putting the data into a format, and so that may be copywritten, okay but then to say that his product based on their (equibase) data is still covered by Equibases copyright??

Seems like a stretch. Could he not take it out of the comma delineated format or whatever it's in and thereby have the raw data?? The raw data is not protectible as a copyright. As a tradesecret in theory, but not in this case as the data is not a secret.

Imagine if some researcher unlooked the DNA helix and then sued those who wished to use this information to make drugs etc? Could he put the DNA code in his own format and then offer it for sale and then claim the data cannot be re-used?

Oh wait, NIH tried this didnt they? Fortunately they lost. :)

I think if Equibase thought they had a good case they would have filed suit against Ed Bain and a lot of other folks. The absence of such a suit is rather telling. Not only that, their failure to attempt to protect any perceived rights diminishes their claims.

[highnote]

Bain's case is dated APril 27, 2007. They haven't had much time to respond.

[bobphilo]

Are we such a "me" society that nobody should ever be compensated because it might affect "me"? Justice be damned?

Well put, Ranch. :ThmbUp:

[Greyfox]

Ranchwest said:

Are we such a "me" society that nobody should ever be compensated because it might affect "me"? Justice be damned?

Philfan07 said:
But what if these accusations were actually true? What if Brisnet did single handedly sabotage and ruin a guy's livelihood? If this is the truth, then Brisnet should pay through the ass.

I say:
If true, I have no problems with realistic and fair compensation.
Which doesn't boil down to oodles of dollars more than he's likely ever made.
Second, it won't Brisnet paying through the ass if they were in the wrong.
It will be all of us. (Even those who don't belong to Brisnet.)
We'll see in the long run who the "ME" man is.
Until Brisnet is proven guilty it's Ed Bain. These are allegations, unproven so far.

[Indulto]

...
Question 1.) Why isn't there another data provider?

Answer 1.) I guess it's because Equibase has a stranglehold on the industry.

True, Equibase is owned by all the member racetracks.

Question 2.) But why are racetracks members of Equibase?

Answer 2. ) Probably because there is no other choice.

Question 3.) Why don't racetracks have other options for distributing their data?

Answer 3.) See Answer 1.If the tracks were willing to cooperatively set up an equibase, why didn't they set up an ADW in the same manner?

[OverlayHunter]

JP -

I understand your point about the tenuous nature of a copyright claim, but do the data suppliers have an "end around" based on the terms of use? Software licenses define how many machines, etc. Can't the data be sold only on the condition that is used in certain limited ways? That is, by virtue of downloading the data, the buyer is agreeing to limit use in certain ways thereby inducing the supplier to sell.

[highnote]

If the tracks were willing to cooperatively set up an equibase, why didn't they set up an ADW in the same manner?


Is that a rhetorical question or do you want an answer? :confused:

[Pace Cap'n]

Anyone have any guesses as to how much revenue is generated through the sale of data (pp's), say in a one-week period?

[Indulto]

Is that a rhetorical question or do you want an answer? :confused:Of course I want answer, especially one of yours. :ThmbUp:

[Steve 'StatMan']

If the tracks were willing to cooperatively set up an equibase, why didn't they set up an ADW in the same manner?

You mean you expected logic from national race track management - late 1980's - early 1990's national race track management no less?! :lol:

[ranchwest]

JP -

I understand your point about the tenuous nature of a copyright claim, but do the data suppliers have an "end around" based on the terms of use? Software licenses define how many machines, etc. Can't the data be sold only on the condition that is used in certain limited ways? That is, by virtue of downloading the data, the buyer is agreeing to limit use in certain ways thereby inducing the supplier to sell.

1) This case is not about copyrights or data. It is about harm.

2) If Equibase wants copyright protection, they need to seek it in the courts. They can't get copyright protection as defendants.

[ranchwest]

Ranchwest said:

Are we such a "me" society that nobody should ever be compensated because it might affect "me"? Justice be damned?

Philfan07 said:
But what if these accusations were actually true? What if Brisnet did single handedly sabotage and ruin a guy's livelihood? If this is the truth, then Brisnet should pay through the ass.

I say:
If true, I have no problems with realistic and fair compensation.
Which doesn't boil down to oodles of dollars more than he's likely ever made.
Second, it won't Brisnet paying through the ass if they were in the wrong.
It will be all of us. (Even those who don't belong to Brisnet.)
We'll see in the long run who the "ME" man is.
Until Brisnet is proven guilty it's Ed Bain. These are allegations, unproven so far.

Punitive damages have nothing to do with the earning power of the plaintiff. It only has to do with the actions of the defendants.

[Greyfox]

Punitive damages have nothing to do with the earning power of the plaintiff. It only has to do with the actions of the defendants.

Punitive charges - if the man has a case,...and , in my opinion, only
fair and reasonable....


Ed Bain, may well be the best handicapper in the world, but I haven't....

(fill in this blank.)

[highnote]

Of course I want answer, especially one of yours. :ThmbUp:

Maybe Guiliani Associates can answer that.

There was talk of setting up a centralized betting system. It sounds good, at first listen. But it would just lead to another monopoly.

[ranchwest]

Punitive charges - if the man has a case,...and , in my opinion, only
fair and reasonable....


Ed Bain, may well be the best handicapper in the world, but I haven't....

(fill in this blank.)

The measure of fair and reasonable for punitive damages is based on the actions of the defendants. That could conceivably be any amount, depending on the severity of their actions. That has nothing at all to do with the plaintiff. The basic relief is what is based on the plaintiff.

[highnote]

Any idea when this will go to trial. I might be interested in attending.

[Tom]

A Court TV simulcast on TVG? :lol:

[ranchwest]

A Court TV simulcast on TVG? :lol:

On tape delay.

[andicap]

Any idea when this will go to trial. I might be interested in attending.

A trial could be very far off. The question is when (and if ) there will be a hearing for a TRO and then a permanent injunction.

[gregrph]

Same with horse racing data. Ed Bain's ideas seemed pretty original to me. I've never seen his product, however. Maybe he didn't change the look of the raw BRIS data in the product he sold?

If you sell speed ratings based on comma-delimited result charts you download from BRIS, I don't see where there is a problem because you are making a derivative work based on public domain information. If you start printing a lot of the raw data, like race comments, which are subjective, for example, then maybe you are in violation of the copyright.

I don't think facts about a race are copyrightable. I could be wrong. I am not an attorney.

I hope the case goes forward and the courts spell out clearly what is and what isn't copyrightable with respect to raw racing data.

SW, I think that the data itself is copyrightable, although not exclusive to BRIS. If BRIS pays their employess to record the times from their own timing devices for a race or if they obtain it (purchase it or freely given to them) by the various race track authorities then I think that data belongs to them do do as they please. They take the data, massage it in various ways (convert fractional times to feet per second, etc), derive their own speed ratings, pace settings, etc. then sell it to the public in various forms. If someone (Ed Bain for example) then comes along and purchases that data (probably the raw numbers), massages or analyzes it in whatever way he wants to then sells the results, I think BRIS would have a right to be upset that he was using their data without their consent.

If Mr. Bain had approached BRIS, HDW, Equibase, etc. BEFORE using their data, I think a lot of hard feelings would have been sparred. He would have gotten an agreement to use the data and then sell his analyses based on their data. The agreement might have been prohibitive ($5,000/month seems like an AWFUL lot of $$!).

If he had his own employees at the track(s) timing the races or analyzing video replays, getting the same numbers as BRIS< HDW or Equibase then going through his process and selling his results, then BRIS, HDW and Equibase have nothing to stand on. Mr. Bain is not using their data, he is using his own, even though it may be the same!

If you think about all the effort it would take to pay people at each track to time and analyze each race every racing day, that would add up to a LOT of $!

Now, if in fact Mr. Bains computers were brokjen into and destroyed by illegal means by the defendants, then I say that yes, he has a solid case. Doing something illegal (breaking in and destroyinging computer data) in retaliation for another wrong (using BRIS, etc. data without permission) is also not right. Two wrongs don't make a right!

It would be very interesting to hear both sides of this case. I think that there are a number of issues that point toward one side more than the other.

Greg

[ranchwest]

Mr. Bain in not the defendant. There is no assertion that he has improperly used data.

[Greyfox]

SW, .. If someone (Ed Bain for example) then comes along and purchases that data (probably the raw numbers), massages or analyzes it in whatever way he wants to then sells the results, I think BRIS would have a right to be upset that he was using their data without their consent.

Greg

If this is the case, I suspect that 99 % of the handicap sites on the internet are in trouble with Brisnet.

[cj]

In the end, the fight will fall to Equibase. They are basically the sole provider of data. They just provide it to DRF, BRIS, HDW, etc. just like they provide it to individual customers.

I do not think EQ is very anxious to ever have to bring someone to court. They would have a very hard time proving their case if the defendant is cagey enough, while at the same time opening themselves up to questions about their business practices and a possible counter suit. There current tactic is to try to bully people into obeying.

If you think about it, anyone selling figures, ratings, selections, or whatever else is almost definitely using Equibase data at some point in the process. However, the person could also be using RaceReplays, or a live feed and recording it, and a team of guys. The burden of proof would be on Equibase I would think.

[Tom]

Deja vous all over again.
Didn't we argue this data thing to death last year?:D
Go Ed.....get us some answers!:ThmbUp:

[1st time lasix]

I have met and talked with Ed Bain. My first impression is that he is a straight shooter and calm man that is a data freak. His entire methodology of handicapping is based on statistics of trainers. He filters the data to gain information that is useful and then he monitors the "plays" for hit rates and ROI. I believe he truly thinks that he has been harmed and seeks legal remedy. He has given it to a lawyer and allowed them to pursue it for him. {"and away we go"} Good luck to him because our justice systems works based who can win and how much money will it cost....not true justice or moral principal.

[highnote]

If this is the case, I suspect that 99 % of the handicap sites on the internet are in trouble with Brisnet.

As Ranchwest said -- Mr Bain is not the defendant.

[Greyfox]

As Ranchwest said -- Mr Bain is not the defendant.
I think we know that.

[highnote]

If someone (Ed Bain for example) then comes along and purchases that data (probably the raw numbers), massages or analyzes it in whatever way he wants to then sells the results, I think BRIS would have a right to be upset that he was using their data without their consent.
Greg


Upset enough to break into his computers?

[richrosa]

After reading the complaint, I haven't stopped laughing.

I'm just curious. Is there anyone here who actually believes that individual employees of the Jockey Club, Equibase, or HDW broke into Ed Bain's computers planted viruses, sabotaged his PayPal account, online banking, credit card processing, and ruined his 50th Wedding celebration?

Seriously, that is criminal activity that any one individual could go to jail for. Think for yourself for a second. Would you risk jail to plant viruses on Ed Bain's computers so that he wouldn't sell his handicapping "mythology".

Granted I know some of the defendants personally and I know that this is impossible. I just feel a need to stand up for the obvious, and try to stick up for the accused. Remember in the US anyone can sue anybody for anything in civil court. It doesn't make it true. One has to ask that if there were criminal activity as Ed Bain has alleged, shouldn't someone be charged for a crime.

If the criminal activity is untrue, one has to wonder about the whole lawsuit. Ask yourself, who is more credible?

[cj]

I don't think the people did what they are accused of doing. I do believe Ed Bain thinks they did, however.

As for credibility, I'm not sure I'd be asking that question.

[Greyfox]

Remember in the US anyone can sue anybody for anything in civil court. It doesn't make it true.

BINGO!
(Unfortunately many companies settle out of court. If the charges are not proven will Mr. Bain have to cover the defendants and the court's costs?)

[garyoz]

Upset enough to break into his computers?

I doubt that Ed Bain is a gnat on Equibase's radar. It sounds to me like he is losing his grip on reality. Hasn't the DRF Formulator Program eclipsed and far exceeded what he has traditionally marketed? Jerry Brown has an interesting comment about Equibase and this issue on the Thorograph web site (Ask the Experts)--basicly reflecting the corporate discipline and philosophy of Equibase. No way that they are going to attack the Bain web site--btw, which itself is certainly not of an enterprise quality. If it is is not a self inflicted attack, it certainly can be from someone using a false IP address.

Furthermore, I agree with the posts about HDW being the of the highest integrity and straightest shooters in the business. It is basicly Ed Bain against the world and he's naming everyone. The lawsuit is amateurish and looks to been done on the cheap.

What amazes me is how quickly everyone on this board bought into this. Sounds to me that there is certainly an element of paranoia in this whole thing. Who stole the strawberries? Another Captain Queeq episode.

BTW, Equibase is not in violation of antitrust laws--anymore than a financial exchange is.

[highnote]

No way that they are going to attack the Bain web site--btw, which itself is certainly not of an enterprise quality.

What does quality of the site have to do with whether or not someone would attack it? People attack when they are threatened. Bain feels threatened -- so he files a lawsuit.

BAIN claims Equibase et al felt threatened enough to attack his computers.



The lawsuit is amateurish and looks to been done on the cheap.

Again, what does it matter what it looks like? What is important is that it was filed.


What amazes me is how quickly everyone on this board bought into this.

Bought into what? Bain brought suit against Equibase, et al. I haven't heard anyone say it is true or false. I have heard skeptics from both sides.



BTW, Equibase is not in violation of antitrust laws That will be for the courts to decide.

--anymore than a financial exchange is.

Financial exchanges have competition. Microsoft has a choice of which exchange to list its stock on.

What choice do data providers, such as BRIS and DRF, have when it comes to buying Equibase's raw data for which they hope to resell to consumers or other value-added resellers?

The only source of data I know of is Equibase.

How can any company compete with Equibase? Will NYRA, CDI, MEC, Tampa Bay, etc. sell chart data directly to some company other than Equibase and allow that company to resell the data to end users or value-added resellers?

[highnote]

I'm just curious. Is there anyone here who actually believes that individual employees of the Jockey Club, Equibase, or HDW broke into Ed Bain's computers planted viruses, sabotaged his PayPal account, online banking, credit card processing, and ruined his 50th Wedding celebration?

I believe the possibility exists.

Seriously, that is criminal activity that any one individual could go to jail for. Think for yourself for a second. Would you risk jail to plant viruses on Ed Bain's computers so that he wouldn't sell his handicapping "mythology".

Ask the Enron executives if they were willing to risk jail time.


Ask yourself, who is more credible?

I'm sure the lawyers will be asking that question to the jurors.

Just because Equibase, BRIS, etc. are industry leading companies does not mean they wouldn't do anything stupid.

There are plenty of examples of Furtune 500 companies and their executives who have committed crimes.

Recently Hewlitt Packard had a spying scandal. Planting trojan viruses that report computer activity to a remote computer is no different than spying on someone.

I think it is naive to believe a company is not capable of doing something as stupid as spying.

[garyoz]

What choice do data providers, such as BRIS and DRF, have when it comes to buying Equibase's raw data for which they hope to resell to consumers or other value-added resellers?

?
What choice does a broker-dealer, institutional investor or security trading software vendor have but to pay fees to an exchange for real-time data?


Many have a tendency to cry "antitrust" but they have no clue what they are talking about. Antitrust law is well explicated and specific. A single vendor or distributor of data does not equal an antitrust violation. First there is the issue of owning the rights to the data. Second (in addition to the intellectual property), the barrier to entry for new competition is the economies of scale for data gathering and distribution--not predatory practices.

Also this doesn't appear to be an antitrust case--it is so poorly written that it is unclear what legal theory (ies) it is based upon. This would be a very poor test case for anything but wasting $$ on lawyers.

[jma]

I doubt that Ed Bain is a gnat on Equibase's radar. It sounds to me like he is losing his grip on reality. Hasn't the DRF Formulator Program eclipsed and far exceeded what he has traditionally marketed? Jerry Brown has an interesting comment about Equibase and this issue on the Thorograph web site (Ask the Experts)--basicly reflecting the corporate discipline and philosophy of Equibase. No way that they are going to attack the Bain web site--btw, which itself is certainly not of an enterprise quality. If it is is not a self inflicted attack, it certainly can be from someone using a false IP address.

Furthermore, I agree with the posts about HDW being the of the highest integrity and straightest shooters in the business. It is basicly Ed Bain against the world and he's naming everyone. The lawsuit is amateurish and looks to been done on the cheap.



I have to say, much as we might like to see Equibase get taken down a notch, that I have to agree with this. To me, Bain comes off as paranoid and possibly delusional. It sounds as if he's grasping at straws, throwing accusations at the wall to try to get an out-of-court settlement. I don't know enough about the antitrust issue and am not supporting Equibase or how the racing industry handles their information, but in this particular case it's hard to believe it will end up well for Bain.

[richrosa]

I have to say, much as we might like to see Equibase get taken down a notch, that I have to agree with this. To me, Bain comes off as paranoid and possibly delusional. It sounds as if he's grasping at straws, throwing accusations at the wall to try to get an out-of-court settlement. I don't know enough about the antitrust issue and am not supporting Equibase or how the racing industry handles their information, but in this particular case it's hard to believe it will end up well for Bain.

Now we're getting somewhere!!

I betcha this thing gets chucked out of court the minute the judge reads all of the initial depositions from the plaintiff. He won't even have to read the defense depositions to understand this case, or whatever it is.

[LurkingBettor]

BINGO!
(Unfortunately many companies settle out of court. If the charges are not proven will Mr. Bain have to cover the defendants and the court's costs?)

My own simplistic view is that Mr. Bain has found an attorney that will represent him on a contingency basis. No small chore unless there's some validity to the case. Or, he's paying out of his pocket for his attorney. Either way, someone is "gambling" he/Bain is going to win.

[gregrph]

Upset enough to break into his computers?
Yes, I think so. I think is what they should have done, if in fact they di do that.
Greg

[takeout]

What choice do data providers, such as BRIS and DRF, have when it comes to buying Equibase's raw data for which they hope to resell to consumers or other value-added resellers?

A reseller selling to another reseller.

This is something I’ve never been clear on. I didn’t even think they could that. This is why the DRF/BRIS thing has always puzzled me. Does anyone know what the criteria and costs are for one reseller to sell to another. Does Equibase deem it okay as long as both resellers are paying them the 5K a month for the raw data? How does that work?

[gregrph]

There should be multiple "Equibase-like" companies. Just like AT&T was split up. The same should happen to Equibase.

If there was competition for the "data dollars" then the quality of the data would improve or the price would come down -- or both.

Currently, the "Equibase-like" companies are BRIS, HDW, DRF, etc. They have to buy their data from Equibase because there is no other data provider.

Question 1.) Why isn't there another data provider?

Answer 1.) I guess it's because Equibase has a stranglehold on the industry.

True, Equibase is owned by all the member racetracks.

Question 2.) But why are racetracks members of Equibase?

Answer 2. ) Probably because there is no other choice.

Question 3.) Why don't racetracks have other options for distributing their data?

Answer 3.) See Answer 1.

Although I don't think Equibase should be the sole data provider, think about what might happen if there were multiple data providers. Would there be discrepancies amonst them as far as the say the fractional times are concerned? There would then be the question of which provider is more right? Did the winner of the race run 22 & 2/5 43 & 1/5 1:10 & 3/5
or 22 & 1/5 43 & 2/5 1:10 & 2/5? depending on whose data you buy?

Now, I don't even pretend to know the relationship between Equibase and the tracks. Do the tracks supply the raw times to Equibase or does Equibase have their own people at the trace recording the race times? Do the tracks charge Equibase for the information? It's freely available to copy of the tore board at the track.

I'm probably trying to make this simpler than it actually is and I'm just a casual although longtime player. I'm not really "in-tune" with the racing industry, so if I come off as half-baked, it's my own ignorance!
Greg

[highnote]

A reseller selling to another reseller.

This is something I’ve never been clear on. I didn’t even think they could that. This is why the DRF/BRIS thing has always puzzled me. Does anyone know what the criteria and costs are for one reseller to sell to another. Does Equibase deem it okay as long as both resellers are paying them the 5K a month for the raw data? How does that work?


I think a reseller of Equibase data has to be authorized in some manner by paying a fee to Equibase. How much is the fee?

So if you buy Equibase data, you can't just turn around and resell it without paying a fee to Equibase.

Maybe someone on PA will be knowledgeable enough to explain this better.

[highnote]

Do the tracks supply the raw times to Equibase or does Equibase have their own people at the trace recording the race times?


Good question. I used to know, but have forgotten. Didn't DRF used to have their own people at the track, but then came to an agreement where Equibase took over that function?


Do the tracks charge Equibase for the information? It's freely available to copy of the tore board at the track.

I think Equibase is made up of member tracks. I don't know the financial dealings between them. I did read that Equibase paid a royalty to tracks this year. I assume it was from data sales.

The final times are also printed on most track's websites. I don't see why an enterprising person couldn't just grab those times from the websites, compile them into a database and sell them. Or get them from a newspaper chart.

I'm sure if that was tried the person or company would get sued. Would that be a violation of the Sherman act?

[andicap]

We've been accused by a poster of jumping the gun and villifying Equibase.

Other than Tom (and he's pretty much known and loved -- like an eccentric uncle -- for his "shoot first, ask questions later" style here), no one has said boo about its guilt or innocence. I did not opine on the virus matter having absolutely no basis/facts on which to do so.

My main point, which the resulting posts have completely validated, is that it spoke volumes that Bain was NOT making a major case of the copyright issue AND that Equibase hadn't sued him on the matter in the first place.

Reminds me of an issue about six years back that involved Gemstar-TV Guide and the patents it hold on interactive program guides. You know, the ones on digital cable and satellite that tell you what's on, etc. Gemstar sold the service to cable operators and satellite companies.

TV Guide and then following a merger, Gemstar/TV Guide, had long argued that it held all the legal patents on IPGs and had pretty much bullied everyone else out of the game, forcing them to either merge or buy a license from them. Gemstar could do that because no one wanted to risk losing in court against a huge company that could afford the millions in legal costs such a case would demand. Cable operators grumbled about the monopoly (talk about ironies!-- but none had the resources/guts to sue Gemstar.

Lo and behold, one day someone came along who refused to fold! I believe it was Scientific-Atlanta (and maybe satellite provider EchoStar), a provider of cable TV set-top boxes which was marketing its own IPG in its boxes. And it had the resources to take the case to trial. And guess what:

GEMSTAR LOST!! It has NO hold on the IPG patents.

Today customers of Cablevision and Time Warner and others get the S-A guide with their digital cable service, not Gemstar's. Then Gemstar got hammered by an insider trading/fraud case, but that's another story.

So think about Gemstar-TV Guide when you consider the Equibase copyright issue and little people like Ed Bain.

[ranchwest]

Although I don't think Equibase should be the sole data provider, think about what might happen if there were multiple data providers. Would there be discrepancies amonst them as far as the say the fractional times are concerned? There would then be the question of which provider is more right? Did the winner of the race run 22 & 2/5 43 & 1/5 1:10 & 3/5
or 22 & 1/5 43 & 2/5 1:10 & 2/5? depending on whose data you buy?

Now, I don't even pretend to know the relationship between Equibase and the tracks. Do the tracks supply the raw times to Equibase or does Equibase have their own people at the trace recording the race times? Do the tracks charge Equibase for the information? It's freely available to copy of the tore board at the track.

I'm probably trying to make this simpler than it actually is and I'm just a casual although longtime player. I'm not really "in-tune" with the racing industry, so if I come off as half-baked, it's my own ignorance!
Greg

Are we seeing time variance right now with the new TRAKUS system in place at a few tracks? Does the TRAKUS data go to Equibase or how does that work?

[cj]

There was a time not that long ago when we did have different sets of data. I'm not sure about times, I think they were the same. The internal calls and beaten lengths were certainly different.

Surely Equibase must get its finish and BLs from the photo finish company. I'm not sure how they could claim that is proprietary.

[Turfday]

I am an authorized Equibase data provider. Turfday.com is listed as a strategic partner of Equiibase on its website. I pay the same monthly fee for data that Equibase was demanding Ed Bain pay quoted above in one of the beginning posts in this thread. We are at the "low end" of the totem pole as far as what we are paying for the data. The big guys have other arrangements or pay much more and, thus, I only assume are authorized to re-sell.

I may be on the wrong end of this, but I'm paying a big price for the data and whether Equibase is right or wrong or guility or innocent, I do respect they are trying to protect my rights and the rights of their other providers from unauthorized users.

[Premier Turf Club]

I am an authorized Equibase data provider. Turfday.com is listed as a strategic partner of Equiibase on its website. I pay the same monthly fee for data that Equibase was demanding Ed Bain pay quoted above in one of the beginning posts in this thread. We are at the "low end" of the totem pole as far as what we are paying for the data. The big guys have other arrangements or pay much more and, thus, I only assume are authorized to re-sell.

I may be on the wrong end of this, but I'm paying a big price for the data and whether Equibase is right or wrong or guility or innocent, I do respect they are trying to protect my rights and the rights of their other providers from unauthorized users.

Same here, we too are strategic partners. I cannot simply take the entries off BRIS and post them on our website. I pay a data provider for the txt files and then pay what Bob pays to Equibase for the right to put those files up on the site.

And FWIW, I know Ed a little and found him to be a smart, pleasant guy who does good work. I also know Victor Espinosa from Equibase and he has been a true gentleman, extremely easy to deal with and very accomodating. I wish everyone in the business was as straight forward and helpful as Victor. Actually, all the data providers we use are first class. (Track Data systems and Charlson Broadcast Technology are the others). :ThmbUp:

[garyoz]

Reminds me of an issue about six years back that involved Gemstar-TV Guide and the patents it hold on interactive program guides.

Andicap, spurious analogies are the poorest and weakest form of argument. We can all find anecdotal incidents of which we are "reminded" and try to use them to a support an argument.

IMHO this is a squirrelly law suit that may very well end up being of a defamatory nature relative to the defendants. And the fact may be that Bain's mythology (sic) has lost any relevance and is not a viable product. Perhaps Captain Queeg is not the proper metaphor and Willy Loman is.

[kev]

Would Ed have something to show the courts that Equibase or whoever is linked to the breaking in the computers? He just wouldnt go to court and say "That's right they did it" and the courts would ask him prove it. Let me ask this to some of the computer people on here, is it that easy to show that a certain person was linked to these break ins? I guess my point is he better have his shit in line when he or if he goes to court with this.

[highnote]

IMHO this is a squirrelly law suit that may very well end up being of a defamatory nature relative to the defendants. And the fact may be that Bain's mythology (sic) has lost any relevance and is not a viable product. Perhaps Captain Queeg is not the proper metaphor and Willy Loman is.


I sent my attorney (licensed in Florida) the link for the Ed Bain link to get an opinion. He thought it wasn't particularly well written. I agree.

He thought the case had a lot of merit and that Bain has a good chance of winning because it is NOT a criminal case where it has to be proved beyond a reasonable doubt. It's a matter of the jury weighing the evidence and if it tilts in Bain's favor then he could win.

He thought it would take 6 months to a year to go to trial since it was filed in federal court.

Anti-trust does not appear to be a significant part of the case.

[garyoz]

I sent my attorney (licensed in Florida) the link for the Ed Bain link to get an opinion. He thought it wasn't particularly well written. I agree.

He thought the case had a lot of merit and that Bain has a good chance of winning because it is NOT a criminal case where it has to be proved beyond a reasonable doubt. It's a matter of the jury weighing the evidence and if it tilts in Bain's favor then he could win.

Attorneys always want to litigate. They get paid by the hour. They are also always bullish and optimistic, like stockbrokers. He could be correct about juries. OJ was found innocent.

I just wonder if Bain will start rolling some marbles together when he is cross-examined.

[bigmack]

I found the brief a bit easier to read in a PDF: http:/ (http://www.edbain.com/Ed%20Bain%20Verses%20Jockey%20Club%20Equibase%20BR IS.Complaint.pdf)

As much as some might have a disdain for EBase, the blanket conspiracy of the accused all formulating to oust the efforts of a methodology that has less than 50 participants seems more far fetched than LH Oswald being the brother of Sirhan x2.

The brief reads as poorly as an L Ron Hubbard science fiction novel.

[highnote]

Attorneys always want to litigate. They get paid by the hour. They are also always bullish and optimistic, like stockbrokers. He could be correct about juries. OJ was found innocent.

I just wonder if Bain will start rolling some marbles together when he is cross-examined.


Plaintiffs attorneys might want to litigate. My attorney represents defendants. He would rather settle than go to court. And of course, this is just one lawyers opinion.

If Bain truly feels he was damaged then I see nothing wrong with him pursuing a rememdy. Maybe he wasn't able to settle out of court. What other choice does he have, besides dropping the suit?

I have no idea whether he has been damaged, but it will be interesting to see how this plays out.

[ranchwest]

I am an authorized Equibase data provider. Turfday.com is listed as a strategic partner of Equiibase on its website. I pay the same monthly fee for data that Equibase was demanding Ed Bain pay quoted above in one of the beginning posts in this thread. We are at the "low end" of the totem pole as far as what we are paying for the data. The big guys have other arrangements or pay much more and, thus, I only assume are authorized to re-sell.

I may be on the wrong end of this, but I'm paying a big price for the data and whether Equibase is right or wrong or guility or innocent, I do respect they are trying to protect my rights and the rights of their other providers from unauthorized users.

What are you referencing as for Equibase trying to protect your rights?

[highnote]

I do respect they are trying to protect my rights and the rights of their other providers from unauthorized users.


Thanks for clarifying this Turfday.

The thing I would most like to see change is to have more than one source for the original data. Right now, there is only Equibase.

Equibase needs a competitor. Or perhaps they will be broken up the same way AT&T was broken up into Baby Bells. After that happened there was a lot of innovation in the phone industry and the cost of long distance calling dropped dropped sharply.

Since there is only one supplier of data, Equibase can charge whatever price they want. There is no competition.

[ranchwest]

Attorneys always want to litigate. They get paid by the hour. They are also always bullish and optimistic, like stockbrokers. He could be correct about juries. OJ was found innocent.

I just wonder if Bain will start rolling some marbles together when he is cross-examined.

Attorneys don't always get paid by the hour. In fact, in this case I'd be very surprised if they were paid by the hour. They're probably working for a percentage. If that's the case, if they don't win then they get nothing.

[highnote]

Attorneys don't always get paid by the hour. In fact, in this case I'd be very surprised if they were paid by the hour. They're probably working for a percentage. If that's the case, if they don't win then they get nothing.


My attorney pointed out that it's possible Bain put up a retainer -- say $5,000-$10,000 plus cover expenses. The lawfirm might also get a percentage of any damages collected.

[ranchwest]

My attorney pointed out that it's possible Bain put up a retainer -- say $5,000-$10,000 plus cover expenses. The lawfirm might also get a percentage of any damages collected.

Yeah, there's a lot of different ways it could be handled.

[Kelso]

Does a company, such as Equibase, have the legal right to charge different fees for different uses of the same quantities of the same product (data)?

If Tom, Andi and FatGuy buy data from them and use it to make a million bucks a year (each!) betting on races ... and CJ buys the same data, massages it into derivitive data, and sells the derivitive for ten grand (total) per year ... does EB have the right to charge CJ extra?

And if Equibase does have that right under copyright/antitrust/other law, does it matter if CJ cites the source (EB) of his original data in promoting his derivitive product? If he doesn't use EB's name in any way, does he still have to choose between paying their price and not using their data?

Thanks very much to any/all who can lift the fog for me on these questions.

[takeout]

Does a company, such as Equibase, have the legal right to charge different fees for different uses of the same quantities of the same product (data)?

You beat me to it. That was pretty much my next question. :)

Why are the bigger resellers paying a lot more to Equibase? Am I missing something obvious? Is Equibase charging them by how much business they do, like some kind of franchise deal or something?

And, is BRIS paying DRF for the stuff they sell that is made with DRF data? If so, that must’ve been okayed by Equibase, right?

[garyoz]

Attorneys don't always get paid by the hour. In fact, in this case I'd be very surprised if they were paid by the hour. They're probably working for a percentage. If that's the case, if they don't win then they get nothing.

IMHO it would take a pretty desperate attorney to take this on contingency. But then again based upon how poorly written the document is (and baffling legal theory--IMHO) the attorney probably is desperate. If the case is going to center on the alleged attacks on Bain's server, I think it would only take one expert witness to debunk the charge.

Does anyone disagree that Bain's Trainer Pattern's service has been surpassed by DRF's Formulator? I don't know anything about it, except it refers to "layoffs and claims."

Also wonder if the defendents will countersue for defamation or something similar? Settling even without admission of guilt would be bad pr.

[garyoz]

You beat me to it. That was pretty much my next question. :)

Why are the bigger resellers paying a lot more to Equibase? Am I missing something obvious? Is Equibase charging them by how much business they do, like some kind of franchise deal or something?

And, is BRIS paying DRF for the stuff they sell that is made with DRF data? If so, that must’ve been okayed by Equibase, right?

There are no wage and price controls (at least until the 2008 election) so businesses can price as they choose as long as they don't violate antitrust law or other economic regulation.

Charging based upon the number of users is common with Intellectual Property--for example software is typically licensed by number of users or a site license. When you have one or two large customers (such as Equibase and DRF and Bris) contractual relationships can get complicated and special pricing arrangements developed. This is speculation. I have no knowledge of these licensing arrangements--but the interdependence of the players appears obvious.

[Turfday]

nm

[rrbauer]

Does anyone disagree that Bain's Trainer Pattern's service has been surpassed by DRF's Formulator? I don't know anything about it, except it refers to "layoffs and claims."



Apples and Oranges.

[highnote]

Does anyone disagree that Bain's Trainer Pattern's service has been surpassed by DRF's Formulator? I don't know anything about it, except it refers to "layoffs and claims."



I don't think DRF does the 4+30 method. I've never seen that stat anywhere but with Bain's stuff.

Anyone know where Bain is currently getting his data?

[andicap]

Andicap, spurious analogies are the poorest and weakest form of argument. We can all find anecdotal incidents of which we are "reminded" and try to use them to a support an argument.

IMHO this is a squirrelly law suit that may very well end up being of a defamatory nature relative to the defendants. And the fact may be that Bain's mythology (sic) has lost any relevance and is not a viable product. Perhaps Captain Queeg is not the proper metaphor and Willy Loman is.

Gary,
You misunderstood my example.

I am not commenting at all on the merits/validity of the suit as I don't have the facts. It might be "squirraly" and "laughable" as some people have suggested. Or it might not. I have only one side of the story and no insight either way.

I AM commenting on what is NOT being litigated here by EITHER SIDE. Namely the copyright issue. The Gemstar-TV Guide case involved patents not copyrights but same thing really. The parallel is there except substitute Equibase for Gemstar.
One important point I should have made: Whether Equibase's copyright will hold up is NOT my point. I have no idea if it will. But both Gemstar and Equibase are 600-lb giants who
a) no one has the resources or resolve to take to court
b) Were and are reluctant to test their patent/copyright in court and so seek to instead bully people out of the business.

Is that a bit clearer?

[njcurveball]

What choice does a broker-dealer, institutional investor or security trading software vendor have but to pay fees to an exchange for real-time data?


I guess this is a NON spurious analogy! :bang:

[njcurveball]

IMHO it would take a pretty desperate attorney to take this on contingency. But then again based upon how poorly written the document is (and baffling legal theory--IMHO) the attorney probably is desperate.


You know your stuff! A partner of a firm that has been in business for only 35 years is handling this. They must be desperate! :bang:

Malin, Haley & DiMaggio currently employs seven patent and trademark attorneys. The firm is also associated on an of counsel basis with John C. Black, formerly Chief Patent Counsel to IBM with respect to their Personal Computer Division. A significant portion of the firm's work is devoted to securing and defending intellectual property rights in foreign countries.

Malin, Haley & DiMaggio, P.A. became one of the first intellectual property law firms in the United States to become certified under ISO 9000 international quality assurance standards.
http://www.mhdpatents.com/about.htm


By the way, how much is gas in your world?

[garyoz]

You know your stuff! A partner of a firm that has been in business for only 35 years is handling this. They must be desperate! :bang:


Let it move to litigation. Still can't figure out the legal theory. Is it an IP case? That sure is not clear. 35 years in business = quality??? Makes me believe all the more that it isn't a contingency case.

[ranchwest]

Makes me believe all the more that it isn't a contingency case.

That's mere speculation.

[garyoz]

That's mere speculation.


Of course it is.

[njcurveball]

35 years in business = quality???

A law firm that has been in business for 35 years probably would take the "pretty desperate" label off the case. Especially when one of the partners files it.

If you have ever dealt with a law firm, you would know that they take cases on a profit basis. If this were something as silly as people on here are thinking, then they would not even go to the trouble of filing unless Mr. Bain had a wallet full of money.

Since he is asking for $120,000 and pie in the sky, this says to me that this firm sees this case as one that is very significant and can help their reputation if they win it.

Also, they probably charge in the range of $250 an hour. A case like this can bill 200+ hours. Heck with the experts they would have to call to testify, the legal fees may be well over the $120,000 if it goes to trial.

Most here think Ed Bain is a baby crying in his diaper. But to get to this point and be represented by a firm like this certainly makes him more than a gnat to Equibase.

[Dave Schwartz]

Andy,

I AM commenting on what is NOT being litigated here by EITHER SIDE. Namely the copyright issue.

This has been discussed here before and this point is always glossed over. Equibase, DRF, BRIS, etc. do not typically claim copyright violations when the file suit (or threaten to do so). They claim contractual violations.

When a vendor (or an end user) has a relationship with one of these companies it is based upon an agreement. (Yes, I know that you know this.) When you signed up with BRIS, there was a contract/agreement. If you read it carefully, you will find that it spells out what you can and cannot do with their data. (You will find that you agreed to not do very much.)

Now, I have not seen that contract in many years but the last time I read it the agreement basically said that you agree not to be in the horse racing "business" in any way. In other words, you can't be a vendor of anything related to horse racing and use their services.

Is the agreement totally enforceable? Probably not. Would you have to defend yourself if they decided to attack? You bet. Would you win? Define "win."

If "win" means getting the verdict to come your way, possibly; even probably.

If it means "winning monetarily," probably not.

Several times in the past people here have advocated "just suing them" as if it is an easy thing to do. Well, it actually is easy. It just becomes very expensive.

(note: THis is usually where someone jumps in here and says that you can get a lawyer to take it on spec or that it will only cost a couple of thousand dollars. Ever notice how all those people who talk about suing one of the big boys never seem to post about it any more? Why do you suppose that is?)


MY PREDICTIONS:
1. Ed Bain is paying the attorneys involved.
2. Someone (EqB, HDW, BRIS) will file a counter-suit.
3. Ed Bain will not win.

1. As has been stated by others, no attorney in his right mind would take a case like this on spec unless they had irrefutable proof that these claims are true. ("Irrefutable" is going to be tough.)

2. Speaks for itself.

3. He could conceievably "get a good verdict" but to do so will cost him much more than it will likely turn out to be worth to him. (The rest of us might benefit a little at his expense.)


Understand that I am not rooting against Ed Bain. Like the rest of us, my world would get a little easier if the big boys weren't so big. (Heck, I root against Microsoft.)


Regards,
Dave Schwartz

[richrosa]

Gary,

From one businessman's perspective, there is no legal theory. I showed it to my company's General Counsel yesterday, and we laughed aloud.

In my opinion, a judge will take one look at Bain's deposition and ask him, what exactly is he suing for and what are his supporting arguments. At that point the Space Invaders stuff becomes irrelevant. The facts matter.

Part of the issue here on PA is that there is an extreme dislike for Equibase, and a perception that Equibase is a giant monopoly wielding its power to extract more data fees from everyone. Sadly, I think the truth is that there isn't any competition to Equibase because it just isn't a profitable business to enter. DRF gave it up years ago for that reason. No one has emerged to want to tackle the expense of collecting data to sell it to a small pool of people.

Equibase in my estimation/guess has no more than 25 full-timers working for the company. You can sort of gauge their annual volume from there. My guess that as large as we think the horse racing world is, there are probably no more than 5,000-10,000 users of Equibase derived data files through all of the resellers. Probably 98% of horseplayers use the DRF, track program, or the freebies that BRIS gives away. Sure Equibase gets license fees from all that, but General Motors or a monopoly it ain't.

So all in all, I don't think you'll see Equibase harmed in any way from this confused action, nor do I believe if it was harmed, would anyone that reads this board benefit in any material way, which I think should be a consideration for those rooting for Ed Bain's "David" to take on Equibase's "Goliath" (of a tiny-mini Goliath at least).

[takeout]

Equibase in my estimation/guess has no more than 25 full-timers working for the company.
They would have to have more than that, wouldn’t they? They employ all of the chart callers.

[takeout]

Saw this at the their site. I didn’t know the chartcallers were considered part time. Thought they just followed the circuits. There must be a few full-timers at the tracks that run all year.

http://equibase.com/about/history.cfm

[snip]
To meet the data needs of the industry, Equibase employs a full-time staff of approximately 45 people; a number of part-time employees; approximately 90 chartcallers across North America; and professional resources from The Jockey Club Technology Services development staff. Customer support is available around the clock, while data gathering and dissemination operates 17 hours per day, seven days per week.
[snip]

[garyoz]

A law firm that has been in business for 35 years probably would take the "pretty desperate" label off the case. Especially when one of the partners files it.

If you have ever dealt with a law firm, you would know that they take cases on a profit basis. If this were something as silly as people on here are thinking, then they would not even go to the trouble of filing unless Mr. Bain had a wallet full of money.

Since he is asking for $120,000 and pie in the sky, this says to me that this firm sees this case as one that is very significant and can help their reputation if they win it.

Also, they probably charge in the range of $250 an hour. A case like this can bill 200+ hours. Heck with the experts they would have to call to testify, the legal fees may be well over the $120,000 if it goes to trial.

Most here think Ed Bain is a baby crying in his diaper. But to get to this point and be represented by a firm like this certainly makes him more than a gnat to Equibase.

Partners always file the cases. Associates do the work. That is how they justify the high cost per hour. The Associate should probably be fired for the poor job on the filing. A typo alone "mythology" would get you in trouble at most big firms. Who knows what the financial condition of the firm is, but if law firms only took cases that they thought they would win they would be out of business. Cash is cash.

This case hasn't progressed at all far. Mr. Bain has hired a law firm to represent him and they filed the suit. Not far at all. Anyone can sue anyone about anything. All it takes is money. Looks like this is a firm of 7 attorneys and a consulting attorney with a "name" that they have on retainer. Perhaps they are good. IMHO off to a shakey start with this filing.

Gnat gets crushed. We will see.

[Gibbon]

....extreme dislike for Equibase, and a perception that Equibase is a giant monopoly wielding ..... probably no more than 5,000-10,000 users of Equibase derived data files through all of the resellers ..... This figure seems unusually small. Would be interesting if Marc@DRF jumps in.
I believe the DRF claims a daily average circulation of 10,000. This would include online, hard copy and slow racing days. 15 years ago DRF claimed hard copy circulation in the 45,000's.

My issue with the monopoly that is Equibase is there is no incentive to upgrade or innovate.

From what I am able to determine, Equibase has very little in terms of quality control. This is why some choose to pay premiums for the sheets. It's not a belief in the numbers themselves rather, the attention to detail and error checking. Particularly in the timing of races.

[John]

There is always two sides to a story. That is why we go to court.




:) :) :)

[JustRalph]

Also, they probably charge in the range of $250 an hour.

You have got to be kidding me? You can't find a lawyer where I live for less than $400 an hour

[njcurveball]

You have got to be kidding me? You can't find a lawyer where I live for less than $400 an hour

You are probably right. My whole point was that the attorneys have more than a financial interest in this case.

He could have went to a number of lawyers that would have been "desperate" and adjusted their rates accordingly.

As someone who has 48 customers at less than $100 per month, he is talking about $50,000 gross income. If he wins this case, it STILL does not allow him to download from Equibase and re-sell the data.

The judge could give him $120,000 and a $1 for punitive damages. That may sound like a lot, but he has no more income from selling his stuff monthly either way.

So the fact that he has put his livelihood on this case and went to an attorney with a track record of "intellectual property" cases says he feels seriously wronged.

It is not my job to figure out if his claims are true or false. That is for the court to decide.

If he is 50 hours in at $400 per hour and is paying up front, this case is very costly for him to just be looked at as a cry baby.

[njcurveball]

From one businessman's perspective, there is no legal theory. I showed it to my company's General Counsel yesterday, and we laughed aloud.



Yes I am sure you laughed at OJ being found innocent and people getting money for spilling coffee in their lap as well.

Everyone is entitled to a fair trial. I think I heard that in school once. It is curious how there is no legal theory in your mind and a firm that tries cases like this isn't laughing at him as well.

[richrosa]

Yes I am sure you laughed at OJ being found innocent and people getting money for spilling coffee in their lap as well.

Everyone is entitled to a fair trial. I think I heard that in school once. It is curious how there is no legal theory in your mind and a firm that tries cases like this isn't laughing at him as well.

You are confusing criminal versus civil trials. You are not automatically entitled to a trial in civil cases. The judge can decide on his own that the merits of the case are insignificant, and chuck the case. Bain will have a right to appeal and try to get another judge to take the case, but once thrown out, unless its rewritten to be clear, its unlikely. I predict this case gets chucked the minute a judge reads his first deposition.

[highnote]

I predict this case gets chucked the minute a judge reads his first deposition.

If it doesn't get dropped or settled out of court, I predict it goes to trial.

[richrosa]

Now this is starting to get clearer.

It seems that BRIS is suing Ed Bain for using BRIS data to produce his reports. It says on the lawsuit that BRIS has been requesting Bain to cease and desist for over year.

http://dockets.justia.com/docket/court-kyedce/case_no-5:2007cv00140/case_id-53252/

Plaintiff: Bloodstock Research Information
Defendant: Edbain.com LLC, John Johnson, John Doe and Jane Doe

Case Number: 5:2007cv00140
Filed: May 15, 2007

Court: Kentucky Eastern District Court
Office: Lexington Office [ Court Info ]
County: Fayette
Presiding Judge: Joseph M. Hood

Nature of Suit: Other Statutes - Racketeer Influenced and Corrupt Organizations
Cause: 28:1331 Fed. Question
Jurisdiction: Federal Question
Jury Demanded By: Plaintiff

[Greyfox]

Now this is starting to get clearer.

It seems that BRIS is suing Ed Bain for using BRIS data to produce his reports. It says on the lawsuit that BRIS has been requesting Bain to cease and desist for over year.

http://dockets.justia.com/docket/court-kyedce/case_no-5:2007cv00140/case_id-53252/

Plaintiff: Bloodstock Research Information
Defendant: Edbain.com LLC, John Johnson, John Doe and Jane Doe

Case Number: 5:2007cv00140
Filed: May 15, 2007

Court: Kentucky Eastern District Court
Office: Lexington Office [ Court Info ]
County: Fayette
Presiding Judge: Joseph M. Hood

Nature of Suit: Other Statutes - Racketeer Influenced and Corrupt Organizations
Cause: 28:1331 Fed. Question
Jurisdiction: Federal Question
Jury Demanded By: Plaintiff

Huh? Reports of Bain's lawsuit appeared on this thread on May 14 th.
It looks like Bloodstock filed their claim on May 15 th.
So how did Bloodstock file first? I can be thick on these matters , so what am I missing here. Is this not a counter-suit?

[richrosa]

Huh? Reports of Bain's lawsuit appeared on this thread on May 14 th.
It looks like Bloodstock filed their claim on May 15 th.
So how did Bloodstock file first? I can be thick on these matters , so what am I missing here. Is this not a counter-suit?

Sometimes those who know a lawsuit is imminent, file a lawsuit as a defendant to appear to a court or to the public (PA people?) as the one who has been wronged in order to sustain a reputation or business prospects. I'm not saying that's the case here, but the BRIS lawsuit could support that.

I did read the complaint, and it is a very coherent, structured document, very consistent with complaints of type, completely void of the "Space Invaders" and "Dog ate my homework" complaint that Bain's lawyers filed.

I also find it interesting to note that Bain has made several updates on his website to let us all know about the state of this lawsuit, his computer and virus problems, but failed to mention that BRIS filed this lawsuit.

I just wonder if those drowning Equibase, BRIS, The Jockey Club, and HDW might have a different view of the lawsuit in the light that it is now alleged that BRIS might have been the harmed party.

[highnote]

I just wonder if those drowning Equibase, BRIS, The Jockey Club, and HDW might have a different view of the lawsuit in the light that it is now alleged that BRIS might have been the harmed party.


Should they?

[cj]

How does one read the filing from that link?

[njcurveball]

Plaintiff: Bloodstock Research Information
Defendant: Edbain.com LLC, John Johnson, John Doe and Jane Doe



I have been warning people about John and Jane Doe for some time! :lol:

[BillW]

Huh? Reports of Bain's lawsuit appeared on this thread on May 14 th.
It looks like Bloodstock filed their claim on May 15 th.
So how did Bloodstock file first? I can be thick on these matters , so what am I missing here. Is this not a counter-suit?

There's a suit on the docket from last year:

http://dockets.justia.com/docket/court-kyedce/case_no-5:2006cv00217/case_id-50126/

I only assume that it involves the same issue as I am not an official of the court and can't access the text of the case.

[Premier Turf Club]

See attached complaint filed by BRIS.

[ranchwest]

I was hoping that the BRIS suit might focus on the intellectual property issues, but I think it may focus more on the agreement.

If it does go to the intellectual property issues, I think it could be a landmark case.

[garyoz]

It is the contractual use of intellectual property that is the focus. What should it focus on? You or John or Jane Doe enter into a contract and agree not to resell the data, but then violate that agreement. Looks pretty clear cut IMHO.

[Pace Cap'n]

It is the contractual use of intellectual property that is the focus. What should it focus on? You or John or Jane Doe enter into a contract and agree not to resell the data, but then violate that agreement. Looks pretty clear cut IMHO.

Is Mr. Bain reselling the data, or selling a prognostication generated from the manipulation of that data?

[ranchwest]

It is the contractual use of intellectual property that is the focus. What should it focus on? You or John or Jane Doe enter into a contract and agree not to resell the data, but then violate that agreement. Looks pretty clear cut IMHO.

BRIS will try to focus on the narrow scope of the agreement stating that the data not be used for a commercial venture. If the court allows that position, the fact that it is intellectual property might not even come into play.

Bain would likely want to address the broader issue of whether he has the right to sell a derivative work under copyright laws.

[richrosa]

A good question to ask is, "Does Mr. Bain have a product that is for sale that cannot exist without having BRIS data, or some other reseller of Equibase's data?"

[prank]

Recently Hewlitt Packard had a spying scandal. Planting trojan viruses that report computer activity to a remote computer is no different than spying on someone.

I think it is naive to believe a company is not capable of doing something as stupid as spying.


This is entirely correct. I can't believe it took until post #95 before anyone else realized this. On the one hand, a company that 99% of the country has never heard of, and is yet so big that "Ed Bain gnat on their radar"... to everyone else, BRIS and the rest are gnats on the radar, is deemed too big to bother or too incompetent or honest or afraid of jail that they wouldn't do something like this.

Good grief. They could follow the HP example and simply outsource it.

I realize that many of you may not know much about computers, or what companies are out there to do security work, but that just goes to show how easy it is to take over other people's computers: there's a lot of unlocked doors out there, and lots of bots just turning the handles.

As for the actual plaintiff and defendants, I couldn't care less. However, I think jailtime or worse is reasonable for anyone who infects someone's wedding anniversary website with malware that is downloaded to people's computers. That's just sick and twisted.

PRank

[Show Me the Wire]

A good question to ask is, "Does Mr. Bain have a product that is for sale that cannot exist without having BRIS data, or some other reseller of Equibase's data?"


Or phrased another way, "Does Mr. Bain have a product that is for sale that cannot exist without having BRIS data, or some other reseller of a monopoly's data?"

[njcurveball]

Well it seems another bad business move on the part of Equibase. Even if they have the legal (read, more money) upper hand on this case, is it really worth their time and money to add negative publicity from the "non-sheep" people who actually can think through that technology can do things like this.

It is not Space Invaders to do these things. Big businesses, including the Government have been shut down by these "aliens" in the past.

Bain has given evidence to the FBI, so if it did not happen, he is one of the biggest fools around.

The question that has to be decided is not DID it happen, but how and by whom.

I am glad there are reasonable people on this board who realize that.

Bain's website, which people are now visiting thanks to this has a results page.

All it shows is the date, track, race, horse, and trainer. If this is all he is giving out for the $88 (I have never subscribed), then Equibase may have a much harder time with the intellectual property part.

If you cannot read a form or download data and give out selections, doesn't that basically allow anyone to be sued?

I can get the same information from the NY Post. I wonder if they have to pay Equibase $5,000 a month for that data.

[highnote]

BRIS also sells betting and handicapping information about professional sports.

Are they licensed by those professional sports teams to sell that data? Or is that data -- public domain?

Where do they get the professional sports data from?

[highnote]

From the BRIS v. Bain lawsuit:

11. In the scheme which the Defendants have devised and/or in which they are participating, they retrieve information on a regular basis from BRIS. They download the files from BRIS, extract data from the files, incorporate the extracted data into a new file and sell or distribute it to Edbain.com’s customers.

What extracted data is Bain reselling in a new file to his customers?

If it is just the name of a horse or trainer isn't that public domain? Just because Bain has a contract, doesn't necessarily mean that contract is valid.

For example, if I download a copy of Da Vinci's "Last Supper" from a website and then redistribute a copy of it that would not be a breach of the contract even if the contract I had with the company from which I downloaded said it was a breach of the contract to re-distribute the "Last Supper". The "Last Supper" is in the public domain. So the contract would be invalid.

Now, if the website had substantially altered the "Last Supper" to make into a new work of art, then I would be in breach of contract if I re-distributed it without their permission.

DISCLAIMER:

I don't care who wins. I am interested in the truth. I am also interested in knowing what is permissible and what is not. I post my opinion in hopes that BRIS or Bain or other industry people might find it useful.

My opinion has firmed up on this issue precisely because I was able to discuss this situation on the PA board.

There is obviously some bad blood between Bain and the companies he is suing. It's too bad it had to come to this. You'd think they could have worked this out. These lawsuits make both sides look bad.

Can't we all just get along? :cool:

[richrosa]

Bain has given evidence to the FBI, so if it did not happen, he is one of the biggest fools around.

The question that has to be decided is not DID it happen, but how and by whom.

I am glad there are reasonable people on this board who realize that.


Just so I understand this, according to your post, there is absolutely no way that Ed Bain could possibly be less than honest? Did you read the complaint? I imagine that you cannot respect that there a possibility that Ed Bain is just making this all up because he knew BRIS was going to sue him?

[richrosa]

Or phrased another way, "Does Mr. Bain have a product that is for sale that cannot exist without having BRIS data, or some other reseller of a monopoly's data?"

This was addressed in Post #136. Providing data to horseplayers is not enough of a lucrative business for anyone to want to enter. Personally I'd recommend an ice cream shop in Alaska. There are more potential customers.

[garyoz]

Or phrased another way, "Does Mr. Bain have a product that is for sale that cannot exist without having BRIS data, or some other reseller of a monopoly's data?"

A single provider of a service is typically only regulated as a monopoly if it meets three tests: (1) a globally subadditive cost structure (a continually declining cost curve) (2) no close product substititutes (3) a "public good" component in the product or service. Examples are local telephone service, power companies, etc.

Equibase is similar to a daily newspaper not a public utility. There is the phenonemon of "first copy costs." That is there are high fixed costs for gathering and distributing data. The cost for making the first copy is about the same as for making the nth copy. The greater the number of customers, than the lower your marginal cost because you can amortize the cost over more users. In most cities there is only one newspaper because of this phenomenon. Yet daily newspapers are not subject to special economic regulation because they are the sole provider. There is no special treatment or consideration associated with being the sole provider of a good or service for the vast majority of the economy. No government regulation unless behavior results in a violation of antitrust law.

Barriers to entry in the form of economies of scale (in this case associated with first copy costs) exist in many businesses with a result of a concentration of ownership. A single provider of a good or service is not prima facie a case for special economic regulation or requirements.

[cj]

Here is what I am curious about. If I want the basic information from the tracks, such as race times, medications, claims, payoffs, etc., can I get it? I am not talking about chart calls and comments and things like that compiled by an Equibase employee. Just common race info? Track condition would be another.

If not, it would seem the tracks are not playing fairly. If they are blocking others from getting information about a public event, I think the tracks/Equibase are in trouble eventually.

[njcurveball]

Just so I understand this, according to your post, there is absolutely no way that Ed Bain could possibly be less than honest? Did you read the complaint? I imagine that you cannot respect that there a possibility that Ed Bain is just making this all up because he knew BRIS was going to sue him?


Rich,

Anything is possible. I cannot judge on the evidence in the case as I am not a lawyer.

It just goes beyond my common sense to think he would make claims, get a reputable legal firm, and give evidence to the FBI if he didn't have a shred of truth to back it up.

If you know anything about computers, you realize that a hard drive is never really erased. Even when it is formatted. The FBI could come in and see what you Googled 6 months ago.

If Bain gives them a smoking gun where the evidence does not back up his claims, then he will go down as the dumbest person in racing this decade.

It is much different than someone coming on a BBS and writing that they know everything about law and computers when they can hide behind a keybaord and a monitor.

I doubt many here would be so quick to put their claims on the desk of the FBI and let them judge if they are a gnat and hallucinating about Space Invaders.

[PaceAdvantage]

How about entries? Can I post the entries for the entire card at Belmont, complete with program numbers? Why not? Belmont faxes out the entries to various outlets daily. It is produced at Belmont Park, not at Equibase.

Not to get off topic, but I have a feeling Equibase would have a problem with me posting entries, and especially entries with betting numbers...and that just ain't right.

[richrosa]

(3) a "public good" component in the product or service. Examples are local telephone service, power companies, etc.


Gary,

Great post.

The public good component is especially important. Buying horseracing data is a completely voluntary action. There is no quality of life effect associated with gambling or a hobby. Simply, any court would view the purchase of this data as a luxury, and investment, or a cost to enter, and thus would not be subject to anything even remotely close to a "public good" qualification.

Furthermore, one has to wonder about Equibase's pricing structure. At an gracious average of $1 a race day, I wonder how one could support price fixing. How cheap do the "monopoly people" think that file should cost. Certainly what Equibase charges resellers is up to reseller to decide whether or not they want to build a business on top of that, much like a McDonald's franchise decides to buy frozen patties from the franchiser.

[njcurveball]

How about entries? Can I post the entries for the entire card at Belmont, complete with program numbers?

Well there is Preakness analysis that was compiled using some type of data, so I hope you do not get sued by Equibase.

The post says routes played to speed on Friday. If you looked at Equibase charts to confirm that, are you violating copyright law?

It is a fine line where the law is drawn in many things. Imagine getting a ticket for going 56 in a 55 zone?

Or if I am allowed to take one straw from Mcdonalds why don't I just open the case and take them all home? Or ketchup, salt, etc?

[highnote]

At an gracious average of $1 a race day, I wonder how one could support price fixing. How cheap do the "monopoly people" think that file should cost.

How about free.

The racetracks created Equibase. So in effect, they pay to keep Equibase in business. Without enough member tracks, there is no Equibase.

The tracks are going to collect data whether anyone buys that data or not. They need it for their own records.

Since they already need to collect it, it costs hardly anything to distribute it electronically. So maybe 1 cent for 10 charts is the right price? Who knows?

See, if you are an authorized reseller, you have no choice but to pay whatever they say you have to pay. True, you don't have to buy the data, but if you want to be in the reselling business you have no choice -- unless you want to have the balls (or whatever) to do what Ed Bain is doing.

Paraphrase from Wikipedia:

The Sherman Act was not specifically intended to prevent the dominance of an industry by a specific company, despite misconceptions to the contrary.

Equibase seems safe here.

However, maybe not so safe on this point:

According to Senator George Hoar, an author of the bill, any company that "got the whole business because nobody could do it as well as he could" would not be in violation of the act.

I think there are companies that did do it as well as Equibase. However, they might have been forced out by Equibase.

Ed Bain probably should have included every member of Equibase in his lawsuit.


What the law does attempt to do is prevent the artificial raising of prices by restriction of trade or supply. The law was intended to prevent arrangements designed to, or which tend to, increase the cost of goods to the consumer.

Very interesting. Perhaps the licensing arrangements between Equibase and resellers tend to increase the cost to the consumer.

[cj]

I would say Rich you are at least a little biased here, no?

The business is so short sighted it is pathetic. The data should absolutely be given away for free to anyone that wants it. This can do nothing but stimulate growth and innovation in the game. However, this is being stifled by Equibase. I can only assume it is people trying to keep their salary while failing to see the big picture.

Seriously, what possible harm to the race tracks could come from the service Ed Bain provides? What is Equibase worried about? Do they go after tip sheet providers? On line selection services? Speed figures sellers? All they are doing is sucking money away from the bettor. If they charge Ed Bain, or anyone else with a good product, more money to enter an agreement, he in turn must charge his customers more money, who in turn bet less money. Or, they stay less informed and lose more, and probably lose a lot faster. How does that help horse racing?

Of course $1 isn't much to pay for a race card, but do at least consider that every time we make a $2 bet, we are paying 40 cents.

[Kelso]

Certainly what Equibase charges resellers is up to reseller to decide whether or not they want to build a business on top of that, much like a McDonald's franchise decides to buy frozen patties from the franchiser.


If McDonald's should decide ... for whatever business reason, and franchise agreements notwithstanding ... to sell patties to whomever will buy them, does the company have the right to sell them at a different price (either higher or lower) to an institution (say, a private school) on a not-for-resale basis than it sells to a franchisee explicitly for resale? (Assume identical quantities.)

Another way of again asking ... does a company have the legal right to sell the same quantities of the same product at different prices, based solely on end-use? And if so ... does use of the provider's name, by a buyer and for promotional purposes, make any difference?

[highnote]

You know what's interesting?

People complain about a dominate industry player like Equibase hurting the little guy.

And then on the other hand, when a dominate bettor comes along and makes millions of dollars people complain that the big bettor has an unfair advantage and the little guy is being hurt.

The big guys don't want the little guys to become the big guys.

If you were a little guy who has moved up to a middle guy you don't want to alienate the big guy and you don't want the little guy to move ahead of you. But at the same time you want the little guy to keep helping you move up to become a bigger guy.

Not taking sides here, just making an observation.

Seems to me the best thing for Equibase, et al to do is to kiss and make up with Bain. The parties need to find an agreement before any more damage is done. No one is going to win this battle.

Bain has firewall protection now. BRIS should let Bain sell his product. There is no way he is hurting BRIS's business if he pays for their data. If Bain can't sell BRIS data and make his product there is no guarantee that Bain's customers will buy BRIS products in the same amounts they were willing to buy from Bain.

[richrosa]

I would say Rich you are at least a little biased here, no?


Biased about the people involved, yes. I have a few points here. I know many of the defendants in the Bain complaint personally. They've been slewed here without a lot of consideration given to the fact that Bain might have harmed them, and quite possibly not be telling the truth. As far as HOS goes, I derive 99.9% of my income from other sources. I do HOS to keep me sharp and to have fun with the people who use my program.

Second, whether you or I like Equibase or not, I recognize their right to exist as a company and charge what they want. As a reseller or a consumer, I'm not forced to buy. If I want to start collecting data and competing, and they tried stopping me, then I might have another opinion. There is no evidence that's ever happened. By all accounts competitors got out because they didn't find it a lucrative business.

Third, Equibase has every right to protect its copyrights. Whether you or I like it or not, they own the data, and have a responsibility to protect it being used in derivative works when not licensed. For example, I imagine if your (CJ's) pace figures started showing up in HOS, and I paid you no royalties, nor got your permission, and started making money off them, I imagine you'd be pretty steamed, probably enough to seek remedies.



The business is so short sighted it is pathetic. The data should absolutely be given away for free to anyone that wants it. This can do nothing but stimulate growth and innovation in the game. However, this is being stifled by Equibase. I can only assume it is people trying to keep their salary while failing to see the big picture.


Whether you or I agree with this or not, they have every right to make this business decision. I would suggest however, that once the data becomes free, and there is no incentive to keep quality control, the worthiness of the data could suffer. Stringers get paid to produce the charts, and people in the office get paid to QC the data (to whatever degree). When the data becomes free there might be less of an incentive to produce it properly.

I believe that the Timeform data in the UK, which is privately produced, and is the only, albeit unofficial split times available, is very expensive, around $20 per race card, just for split times and a rating.


Seriously, what possible harm to the race tracks could come from the service Ed Bain provides? What is Equibase worried about? Do they go after tip sheet providers? On line selection services? Speed figures sellers? All they are doing is sucking money away from the bettor. If they charge Ed Bain, or anyone else with a good product, more money to enter an agreement, he in turn must charge his customers more money, who in turn bet less money. Or, they stay less informed and lose more, and probably lose a lot faster. How does that help horse racing?

Of course $1 isn't much to pay for a race card, but do at least consider that every time we make a $2 bet, we are paying 40 cents.

Like I said, there would be harm if HOS began using CJ's figs and charging HOS customers for it. We are a nation of rules and laws. Regardless of whether or not we like Equibase, they aren't breaking any by asserting their rights, the (s)pace invaders and virus stuff aside.

[ranchwest]

Just so I understand this, according to your post, there is absolutely no way that Ed Bain could possibly be less than honest? Did you read the complaint? I imagine that you cannot respect that there a possibility that Ed Bain is just making this all up because he knew BRIS was going to sue him?

While it seems obvious that someone was sitting on their suit, I can't tell which party it was. Maybe it was both of them.

[cj]

I wasn't really talking about the lawsuit anymore, just the business in general. So you are right, it doesn't matter whether I agree. I'm not so sure they really own the data, that will be fought someday.

As for quality control, come on. It couldn't get much worse. Most quality control is provided by the customers! Also, the people doing the work would still be getting paid, and by the same people, the race tracks.

[njcurveball]

Like I said, there would be harm if HOS began using CJ's figs and charging HOS customers for it. We are a nation of rules and laws. Regardless of whether or not we like Equibase, they aren't breaking any by asserting their rights, the (s)pace invaders and virus stuff aside.

Well here is a point where I agree with you. If someone has put their time into making pars, variants, class evaluations, etc. Then they deserve to get paid a premium for their effort.

However, my confusion is where Bain fits in this equation. If he simply uses a trainer name, days away, whether it was claimed or making a debut, so many starts since, etc. Then there is nothing proprietary there.

Bain seems like a perfect candidate to be bullied and made an example. I would probably be against him if his stuff looked like it used Equibase Speed Figures or Class figures or stuff like that.

I wish someone who uses is stuff would say what the real attraction is. From what I see it is basically just trainer stats compiled into categories and he gives out horses that fit the trainers winning profiles.

[njcurveball]

As far as HOS goes, I derive 99.9% of my income from other sources.


Do you sell Ice Cream in Alaska? :lol:

[JPinMaryland]

Well here is a point where I agree with you. If someone has put their time into making pars, variants, class evaluations, etc. Then they deserve to get paid a premium for their effort....

What someone "deserves" and what someone is legally entitled to are not the same thing. Equibase may deserve millions of dollars for what it is doing but it is not legally entitled to protect information that is: a) historical fact or b) theory(s).

For example Einstein could not have collected royalties for anyone who used something having to do with E=MC2. Nor could Pauling collect royalties anytime his theory of electronegativity showed up in a text book. Or von Neumann's theory of Games and Economic behavior. Or Kenneth Arrow's Voting Theorem. Or Godel's Improbability Theorem, or the 5 color theorem or theory of Gravity or Freud's theories...

To say "Horse X ran 112 pts. today." is nothing more than a theory. There is no other way to look at that under common law. No, it doesnt sound like a theory but really that's all it is.

It does not have enough "creativeness" to it to consider it a work of art like a sculpture or a poem or a song etc. To assign a number to something is not a work of art.

This "public good" notion is a red herring. You cant create work of art where none exists just because gambling is not a public good. It's not relevant to the main problem, there is nothing creative here in a number.

[takeout]

By all accounts competitors got out because they didn't find it a lucrative business.
What competitors? The only competitor to Equibase that I’m aware of was DRF for a short time back when they were both employing chartcallers.

I’m still hung up on how DRF, not being a wholesaler, can sell data to BRIS. Is it in the “rules” that a reseller can sell to another reseller? Doesn’t sound right.

[garyoz]

What competitors? The only competitor to Equibase that I’m aware of was DRF for a short time back when they were both employing chartcallers.

.

Exactly, but because the economies of scale in collection and distribution of the information provides a competitive advantage to the largest provider of information the DRF withdrew from that business. It is also a product that is not easily differentiated (race charts).

CJ's earlier post is really at the crux of the issue. In theory, if we wanted to start a competing organization would we be blocked from doing so by actions by Equibase--such as exclusive contracts with the tracks? I don't think so...that would be a potential antitrust violation. (but our organization would fail because we would never reach a minimal optimal scale and could never compete with Equibase on a price level and it is unlikely we could signficantly differentiate the product to justify a premium--Charts are a mere description of an event).

It looks to me (IMHO) like the Bain case is about contract law (from the Bris suit).

[richrosa]

However, my confusion is where Bain fits in this equation. If he simply uses a trainer name, days away, whether it was claimed or making a debut, so many starts since, etc. Then there is nothing proprietary there.


I think the test here is easy. If Bain can do this without downloading BRIS or other Equibase copyrighted data then it isn't proprietary. If he's just keeping track of this data by other means (his own chart stringers, watching on TV maybe), then producing a product out of it, then he is likely not to be violating Equibase's copyright. If he needs the data to produce his product, then he is in violation as per the agreements to he's made to download the data.

According to the BRIS lawsuit, if it is true, and the intersection of the two complains suggests that it, Bain knew of their concerns, and suggested a license was suggested. Bain decided that it was to too expensive, and may have continued to download data to produce his product (again as suggested by the BRIS lawsuit through the other defendants).

Where the space invaders and viruses fit in, I'm not sure. Maybe his virus protection was outdated and he runs Windows and is subject to that kind of stuff, plus admittedly he didn't even have a firewall, making himself more likely of a target.

Gary, again, you and are 100% on the same page.

As for Equibase quality, I agree with CJ that it could be a lot better, which is why some of the added value resellers have developed. They have an incentive to clean up the data and get it right. HDW is one such party that I think does a great job. However, this falls back to the same issue about competition. Selling data is a small cottage business. There's maybe between 5,000 - 10,000 downloaders of such data, thus a limited pool in which to sell products. No competitor has a reason to start a business both in terms of product innovation or their desire to capture market share because frankly, we horseplayers just don't buy enough of the their stuff to make it worthwhile.

[highnote]

The Sherman Act attempts to prevent the artificial raising of prices by restriction of trade or supply. The law was intended to prevent arrangements designed to, or which tend to, increase the cost of goods to the consumer.

This seems to be the crux of the matter with respect to Equibase.

If Equibase had competition would prices be lower?

Or do Equibase keep prices low to thwart competition?

If either are true then they might be in violation of the Sherman Act.

Standard Oil was in violation of anti-trust laws even though their price for oil was lower than other producers.

As far as I can tell, Equibase is a cartel made up of member racetracks.

If anyone should be upset it's the member racetracks. What happens to a racetrack that is not a member of Equibase?

Why couldn't NYRA pull out of Equibase and sell their own data?

I would argue that is precisely what should happen. The racetracks should get together and form a data standards committee. All result charts should conform to a comma-delimited standard. The result charts should be made available on each tracks website and through several data distributors.

People or companies could buy the data from racetracks or download it for free and then add value to the data by creating new products from the data.

These new products would stimulate innovation and drive betting handle.

What functions do Equibase perform that racetracks can't do on their own and that several independent companies couldn't do.

If racetracks were free to set their own prices for data perhaps consumers would bet at tracks that offered the best priced data. And perhaps some tracks would even give the data away in order to attract bettors.

[garyoz]

As posted earlier, antitrust law is well explicated and narrowly defined. Just because the economics of the business result in one seller does not mean that there is a violation of antitrust law. Government interference in the economy is (thankfully) limited to well defined anticompetitve activities. Where is the restraint of trade in the publishing business--which is essentially what Equibase does? Unless the tracks owned equibase and precluded others from collecting data (e.g., not allowing Ragozin and Thorograph charters on track) there is no cartel issue.

As a side note, much data are available for free or for little cost to individual players, and at a higher cost to value added resellers. Ed Bain could collect the data himself and produce his prodcut without using Bris files. It just would be uneconomical and time intensive.

[Greyfox]

Reading all of this legalese of which I know nothing about leads me to think,
maybe we here at PA should start a "class action suit against Equibase."
It wouldn't be hard to demonstrate that in every race, and perhaps every horse that they have been selling us false information about beaten lengths, hence
we're not winning as often as we should. Hmm.
Not only that, they've sold us that false information for years.:lol:

[highnote]

As a side note, much data are available for free or for little cost to individual players, and at a higher cost to value added resellers. Ed Bain could collect the data himself and produce his prodcut without using Bris files. It just would be uneconomical and time intensive.

That is one of the points I was trying to make. By keeping data prices low Equibase is preventing anyone from competing with them.

Some industry companies are also predatory. I'll give you an example.

A good friend of mine had an idea of keeping a database of form books. A subscriber could log on and query the database for races with conditions that suit his or her horse. So I wrote software for him that allowed a user to log on to our online database and query the form books. We sat around one day with a couple of people we recruited as possible employees and typed in a bunch of form book info we were able to find at various racetracks websites.

He approached The Jockey Club (Equibase is a member of the Jockey Club family of companies) with the idea and sent them a copy of the software. He says they took his idea for themselves and now sell that service on Equineline.com.

He never received a thank you or an acknowledgement.

He says it is possible they had the idea simultaneously, but he doubts it.

And this is why some people understand Bain's concern about the way some companies in this industry practice business.

[Greyfox]

A good friend of mine had an idea of keeping a database of form books....
He approached The Jockey Club (Equibase is a member of the Jockey Club family of companies) with the idea and sent them a copy of the software. He says they took his idea for themselves and now sell that service on Equineline.com.

.

Your good friend wasn't very bright.

[highnote]

Your good friend wasn't very bright.

Why, because he trusted a "respected" company?

He was naive and ignorant of the way the industry works.

Think about how many people have stolen Sartin ideas over the years and you'll soon figure out how the world works.

Mark Cramer had the idea of first time bandages off ( or was it first time bandages on?).

Anyway, I told my friend about the angle. He had a friend who was helping another friend who was working for Thorograph at the time on trainer angles. The angle soon turned up in Thorograph's publication.

I always felt Mark Cramer never got the credit he deserved for the angle.

But then again, maybe he got it from someone else.

[garyoz]

That is one of the points I was trying to make. By keeping data prices low Equibase is preventing anyone from competing with them.

I get it. You don't think Equibase is charging enough for their services. They can't win on this board. Don't think that view would be very popular with players.

[highnote]

I get it. You don't think Equibase is charging enough for their services. They can't win on this board. Don't think that view would be very popular with players.


I left out a word. Let me rephrase it, "By keeping prices low, Equibase MAY be trying to stifle competition."

I'm not willing to say that is their intent. But then again, it MAY be their intent.

I'm only raising the possibility.

It's good to have these discussions. It's helps to understand how the industry works.

[Dave Schwartz]

Why, because he trusted a "respected" company?

He was naive and ignorant of the way the industry works.


John,

With all due respect, that is NOT just the way "the industry" works. It is the way the world works.


Regards,
Dave Schwartz

[highnote]

John,

With all due respect, that is NOT just the way "the industry" works. It is the way the world works.


Regards,
Dave Schwartz

That's funny you say that, because I wrote "the world". Then when I proofread it I changed it to industry. I had it right the first time, I don't know why I changed it. The industry is just a microcosm of the world.

[highnote]

Actually, I used "the industry" in two different posts. Now I don't remember which one it was that I changed.

But he should have known how the world works. And he should have asked me before he sent them the idea -- because I know how things work. ;)

[richrosa]

Ed Bain has posted an update. It seems he hasn't received the BRIS lawsuit, but he's out of business, online at least.

http://edbain.com/wh.htm

[skate]

I caught that myself during my first reading of the brief...you'd think SOMEONE would have caught it before it was filed....but anyway, that's a minor point....





however, look into the real reason for the mistake, it gives you an option down the road. kinda like changing you wager at the 1/2 marker.


lawyer may fill in the error with any of the following;
1- Mystify
2- Methodical
3- Meth-o-done

keep it open;)

And and and ,said lawyer can now charge another $52, 000.

[Greyfox]

From Ed Bain's update:


"Though we could circumstantially prove it was Equibase, BRIS and HDW breaking into all these, on February 7 of this year we obtained actual physical evidence when our firewall logged The Jockey Club attempting to break into my computers and this event changed everything."

If he's got that, he's got a case.

[BillW]

From Ed Bain's update:


"Though we could circumstantially prove it was Equibase, BRIS and HDW breaking into all these, on February 7 of this year we obtained actual physical evidence when our firewall logged The Jockey Club attempting to break into my computers and this event changed everything."

If he's got that, he's got a case.

Physical evidence? A firewall is a piece of software, I doubt that he has any physical evidence. His firewall may have logged IP addresses that trace back to the Jockey Club. Tough to prove that they weren't spoofed.

[Greyfox]

Three dates are worth noting at the bottom of his lawsuit.



May 11, 2007: Ed Bain reported the May 8 and May 9, 2007 computer destruction to the FBI.

May 25, 2007: The identities of the Attacker of Ed Bain's business and on line statistics is confirmed.

APRIL 2, 2007: Ed Bain went to the FBI office in West Palm Beach Florida and gave them all the evidence collected to date.
The question is, did the FBI assist in gathering his evidence?

[ranchwest]

The real question is going to be how good of an understanding of the evidence the court has.

[takeout]

I’m still hung up on how DRF, not being a wholesaler, can sell data to BRIS. Is it in the “rules” that a reseller can sell to another reseller? Doesn’t sound right.
Well, Ed Bain’s chart on the structure of all racing information finally cleared that up for me. I always thought that DRF/Equibase “truce” stunk out loud. This also explains how BRIS can play both sides of the fence and get away with it (sell both EQ and DRF data).

[TurfRuler]

I believe that the judge will cite this charge in rendering his opinion in this case.

In June of 2000, Plaintiff Ed Bain was forced to form a business relationship with HDW, Inc. because of HDW, Inc. and It’s Data Services (ITS), both affiliates of Equibase, relayed threats from Equibase. ITS and HDW stated Equibase would prevent Ed Bain from buying information and offering his statistics on line and Equibase would put Ed Bain out of business and blacklist him in the handicapping industry if Ed Bain did not go with ITS or HDW. Because of this in June of 2000 Plaintiff, Ed Bain entered into an oral agreement with Defendant HDW, Inc. in which HDW, Inc. would produce a database software program for marketing Ed Bain’s original methodology through statistics for handicapping in the form of on-line services on the internet to produce handicapping reports for the public at large that incorporated Ed Bain’s “Layoffs and Claims” and 4 + 30 methodology. Prior to this agreement with HDW and Equibase, Ed Bain owned a business under the name of East Antietam Racing Publications that produced his Layoff and Claims statistics in book form. Before he went with HDW, Ed Bain continued his research and produced innovative products resulting in continuous business growth. After going with HDW because of Equibase’s threats, according to HDW, Ed Bain’s business did not grow and actually declined. Ed Bain no longer had any control, input or benefits regarding his business and the use of his well recognized name and mythology and the only ones that were profiting from this forced relationship was HDW and Equibase.

[TurfRuler]

Quote:
Originally Posted by PaceAdvantage
I caught that myself during my first reading of the brief...you'd think SOMEONE would have caught it before it was filed....but anyway, that's a minor point....






Upon filing an EEO complaint, I was asked how to spell an offending word that was said to me by a female manager. Her words were, "If you are looking for trouble from me I will rip your jugular out of your throat." When asked how to spell jugular, I spelled it j-u-g-g-l-e-r.

[richrosa]

I believe that the judge will cite this charge in rendering his opinion in this case.

I might have mentioned this before. I'm not a lawyer, but I have a lot of on the job legal experience, so I can honestly say I'm somewhat familiar with litigation and civil proceedings. After reading the Bain complaint, I doubt it sees the light of day of a trial. Its confusing, not well written, asserts many claims with spurious evidence and relies on the premise that Bain's business was important enough to force an intentional conspiracy between multiple parties that had nothing to do with copyright protections and more to do with having an axe to grind with Ed Bain. Putting the space invaders stuff aside, the complaint is a rant, not a structured case.

My money's on the judge chucking this case out in the first pre-trial hearing with the advice that it be reformed to resemble litigation with a meaningful purpose not a series a pot-shots.

[Greyfox]

I've changed my mind on this case a bit since having read it last month.
When I first read the suit, I wondered about Ed and "paranoia."
I'm thinking a bit different now.

If everything Ed Bain claims to be true, is indeed true, then he must surely be a very upset man. Any of us would be no matter how small our business.
If he has "evidence" that it's true, even a poorly written document is not going to get a case tossed out of court. I think Judge's understand that in this day and age of spell checks terms like mythology and methodology are easily missed by legal secretaries.
This man may have a stronger case than I originally evaluated it at.

[TurfRuler]

I might have mentioned this before. I'm not a lawyer, but I have a lot of on the job legal experience, so I can honestly say I'm somewhat familiar with litigation and civil proceedings. After reading the Bain complaint, I doubt it sees the light of day of a trial. Its confusing, not well written, asserts many claims with spurious evidence and relies on the premise that Bain's business was important enough to force an intentional conspiracy between multiple parties that had nothing to do with copyright protections and more to do with having an axe to grind with Ed Bain. Putting the space invaders stuff aside, the complaint is a rant, not a structured case.

My money's on the judge chucking this case out in the first pre-trial hearing with the advice that it be reformed to resemble litigation with a meaningful purpose not a series a pot-shots.

I disagree on the premise that the complaint is not well written. I understood it to be as clear as the day is long. If I can read the brief and understand it then I believe that the judge hearing the case, whoever it may be, will get the gist of it. Now as for Equibase's response, it was very shallow, citing only that John Doe's are not allowed to use their product for any other purpose as stated in their user agreement. And another thing that get's in my craw is that this Victor Espinosa wanted Ed Bain to pay $5,000 a month for Equibase's services or be destroyed by Equibase. And then the convienient sell off of the BRIS for $80 million is pure Wall Street to protect the firm against an unwinable litigation.

[njcurveball]

Physical evidence? A firewall is a piece of software, I doubt that he has any physical evidence. His firewall may have logged IP addresses that trace back to the Jockey Club. Tough to prove that they weren't spoofed.

I wonder than how the record companies sue Downloaders by logging their IP addresses. I guess by your logic all they need to do is show reasonable doubt that IP addresses can be spoofed.

[richrosa]

I disagree on the premise that the complaint is not well written. I understood it to be as clear as the day is long. If I can read the brief and understand it then I believe that the judge hearing the case, whoever it may be, will get the gist of it. Now as for Equibase's response, it was very shallow, citing only that John Doe's are not allowed to use their product for any other purpose as stated in their user agreement. And another thing that get's in my craw is that this Victor Espinosa wanted Ed Bain to pay $5,000 a month for Equibase's services or be destroyed by Equibase. And then the convienient sell off of the BRIS for $80 million is pure Wall Street to protect the firm against an unwinable litigation.


TurfRuler,

I'm gonna guess that Bain agreeing to a Terms of Service, agreeing to a contract, or Equibase's copyrights means nothing to you. Is it possible that you just want to see Equibase et all get stung because you believe they are the bad guy?

Equibase sells a product that Bain does not have to buy. We may not like it, but Equibase owns the data. They collect it and publish it based on their copyrights and contracts. One can draw a conclusion that it was Bain's intent all along to gain access to the data in the cheapest forum possible despite the fact that that forum's terms of service were clearly against the type of use Bain contemplated (as asserted in the BRIS lawsuit). Its also possible that Bain doesn't want to pay the type of license fees set by Equibase for using the data in the format that he wants to use it in.

At this current juncture, if no one pays for the data, there is no data. It's quite possible that Bain wanted to use the breath of the data to support his own profit-making, but would not support the profit making of his raw materials supplier. Its sorta like making ice cream from the best cream but refusing to pay the dairy for it.

[njcurveball]

I'm gonna guess that Bain agreeing to a Terms of Service, agreeing to a contract, or Equibase's copyrights means nothing to you.

This is unfortunately a steep hill for him or anyone else to climb! A rare bit of logic in this thread and you have pretty much highlighted his main problem in one sentence.

[garyoz]

I disagree on the premise that the complaint is not well written. .

Now that is funny. :)

[richrosa]

I disagree on the premise that the complaint is not well written.

All one has to do is read the BRIS complaint and compare it for clarity. A real lawyer wrote the one for BRIS.

Gary,

You know I love this thread because it so clearly illustrates many of the problems and perceptions that exist in the business of selling handicapping data. My only wish is that the data industry becomes better supported and with that comes some innovation and competitors. Sadly, I see the opposite with too many having pity on Ed Bain not recognizing that Equibase will get their data collection money somehwere, and if not from Bain it will be from them, eventually. If more like Bain supported the purchase of data we might see the exact opposite.

[garyoz]

It appears to me that many don't understand the dynamics of the free enterprise system. Antitrust law defines the nature of competition--there are no "rights," except you have an unalienable right to fail as a business enterprise if you are not profitable or have inadequate liquidity. This is not well understood due to the sorry state of economics education.

I am a bit more of an optimist on racing data than most. I think RFID and Trackus type solutions collected by microprocessors will make much racing data provided by Equibase a commodity and there will be no economies of scale in data gathering--hence supporting more than one provider or putting pressure on prices. Race Tracks as information providers will not need an intermediary such as equibase. The data could become public--much like baseball boxscores.

That doesn't have much to do with this crazy case--which still seems unhinged to me.

[njcurveball]

The data could become public--much like baseball boxscores.



Public unless MLB sues people for using the public data!

http://news.yahoo.com/s/ap/20070614/...seball_lawsuit (http://news.yahoo.com/s/ap/20070614/...seball_lawsuit)

[ranchwest]

All one has to do is read the BRIS complaint and compare it for clarity. A real lawyer wrote the one for BRIS.

Gary,

You know I love this thread because it so clearly illustrates many of the problems and perceptions that exist in the business of selling handicapping data. My only wish is that the data industry becomes better supported and with that comes some innovation and competitors. Sadly, I see the opposite with too many having pity on Ed Bain not recognizing that Equibase will get their data collection money somehwere, and if not from Bain it will be from them, eventually. If more like Bain supported the purchase of data we might see the exact opposite.

Of course, you basically have a dog in this hunt, so I'll take your comments with a grain of salt.

[richrosa]

Of course, you basically have a dog in this hunt, so I'll take your comments with a grain of salt.


... and what dog is that? Or better yet, what dog do I have in this hunt that we all don't have together?

[ranchwest]

Public unless MLB sues people for using the public data!

http://news.yahoo.com/s/ap/20070614/...seball_lawsuit (http://news.yahoo.com/s/ap/20070614/...seball_lawsuit)

That link doesn't seem to work.

[ranchwest]

... and what dog is that? Or better yet, what dog do I have in this hunt that we all don't have together?

You sell software that relies on the current stream of data.

[richrosa]

You sell software that relies on the current stream of data.

uh, I don't get it? So what does that mean to you?

If I'm guilty of being biased because I don't steal the data and sell it under the current business terms offered to me, then so be it.

[ranchwest]

uh, I don't get it? So what does that mean to you?

If I'm guilty of being biased because I don't steal the data and sell it under the current business terms offered to me, then so be it.

I just think that if Ed Bain wins the suit, then that is not a plus for you. That doesn't necessarily reflect negatively on you, but it does tell me a bit about your perspective.

[njcurveball]

That link doesn't seem to work.

Try this one

http://arstechnica.com/news.ars/post/20070614-mlb-tries-to-convince-appeals-court-that-names-and-stats-are-copyrightable.html

You can google it and find many different versions of the story.

[richrosa]

I just think that if Ed Bain wins the suit, then that is not a plus for you. That doesn't necessarily reflect negatively on you, but it does tell me a bit about your perspective.

Let me add my perspective.

I make next to nothing on HOS. I do it for fun. Just ask anyone who has ever subscribed. Very few of you will pay $99 a month for a quality software product that will help you understand your handicapping better. Its a tiny, tiny, tiny market. If I didn't write HOS for myself, I'd NEVER enter this market. In fact, I would probably be better served by taking it off the market.

I'm a businessman first. My daytime occupation is as a President of a public software company. I understand these issues from that point of view. I deal with lawyers, contracts, and intellectual property all day long.

BTW, what exactly would Bain win if he did win and how would I negatively benefit?

[TurfRuler]

All one has to do is read the BRIS complaint and compare it for clarity. A real lawyer wrote the one for BRIS.

Didn't I read earlier that you shared the complaint by Ed's lawyer with your legal department and you both had a good laugh. I've never read a jail house lawyers appeal, but a lot of times they get them heard before another court.

[Greyfox]

Hypothetically,

Let's say Bain violated his contract agreement with the provider. :ThmbDown:

But the provider came back and invaded his business and computer. :ThmbDown: :ThmbDown: :ThmbDown:

Assuming proof both ways, this is not a "saw off." Bain gets two fistfuls of money, if I'm the judge.

[ranchwest]

Let me add my perspective.

I make next to nothing on HOS. I do it for fun. Just ask anyone who has ever subscribed. Very few of you will pay $99 a month for a quality software product that will help you understand your handicapping better. Its a tiny, tiny, tiny market. If I didn't write HOS for myself, I'd NEVER enter this market. In fact, I would probably be better served by taking it off the market.

I'm a businessman first. My daytime occupation is as a President of a public software company. I understand these issues from that point of view. I deal with lawyers, contracts, and intellectual property all day long.

BTW, what exactly would Bain win if he did win and how would I negatively benefit?

Whether data/software companies would be affected would depend on the direction the case takes. If it focuses on whether Bain is providing a derivitive work, then that might impact data/software companies.

I doubt that's where this is going, though. I think it will focus primarily on whether there is a binding agreement or whether the agreement was coerced.

[Kelso]

May a seller legally price his product according to the use(s) to which a buyer puts it ... such as "personal use" vs "distribution?" If the answer is "yes," it seems to me that the user-agreement is valid and the higher price to Bain is legal. If the answer is "no," I think Bain has a strong restraint claim.

Thank you for all free (and informed :D ) legal advice that follows.

[Seabiscuit@AR]

Greyfox I think your posting is right and gets to the heart of the matter best. If Bain can prove in court that Equibase etc attacked and damaged his computers then I think a court is likely to view the technical legal issues from Bain's point of view

I have no idea if Bain can prove this or not that is up to him to do. If he cannot prove this then he will likely lose the case

You can talk about copyright laws, Sherman Acts, restraint of trade, property rights, contract law etc etc till you are blue in the face. But if one side in a case has behaved in a plain nasty manner they can expect not to be treated kindly by a court

[garyoz]

May a seller legally price his product according to the use(s) to which a buyer puts it ... such as "personal use" vs "distribution?" If the answer is "yes," it seems to me that the user-agreement is valid and the higher price to Bain is legal. If the answer is "no," I think Bain has a strong restraint claim.

Thank you for all free (and informed :D ) legal advice that follows.

Answer from a non-lawyer (but trained in antitrust economics). Yes--unless such pricing can be proven to directly violate antitrust law. Think of volume discounts for example--or how the NFL prices the Sunday Ticket Service--more money expense for bars and restaurants than an individual.

[richrosa]

Ha!!! We're making Ed Bain famous.

Mark Patterson on the always informative Mountaineer simulcast show just mentioned Ed Bain as an expert on "off the claim" angles.

[ranchwest]

Ha!!! We're making Ed Bain famous.

Mark Patterson on the always informative Mountaineer simulcast show just mentioned Ed Bain as an expert on "off the claim" angles.

I doubt if Mark learned of Ed Bain through our postings.

[richrosa]

maybe not, but I doubt its being talked about anywhere else.

Many of the track announcers including Peter Barry at Mountaineer read and post here. I'm almost certain Mark Patterson has a handle here. PA?

[Zaf]

Yes Mark is here, Mountainman , I think ?

Z