A US federal court has ruled that “robust reporting” of chess moves during play is in the public interest. The ruling, published on 22 November, explained why the attempt by World Chess (Agon) to stop chess24 and Chessgames from broadcasting the moves of the Carlsen-Karjakin World Chess Championship had been denied. The long-established understanding in the chess world that chess moves can’t be copyrighted has therefore now been upheld this year in both a US and a Russian court.
On the eve of the Carlsen-Karjakin match the organisers Agon sued chess24 and Chessgames for $4.5 million and sought a temporary restraining order to prevent the sites from providing a World Championship live show. A hearing was held in Manhattan’s US District Court for the Southern District of New York on 10 November, a day before the match began. The judge listened to arguments from both sides for about 80 minutes and then denied the motion, agreeing with all chess24’s arguments.
Yesterday the full reasoning for the decision was published by the court, with the judge ruling that chess24 was not “pirating” or “free-riding” but creating its own content “at great expense”, while Agon had failed to show it was likely to win the case if it went to trial:
First, World Chess has failed to demonstrate that Defendants would be pirating, by live redistribution on their websites, the reports of chess moves that World Chess would produce and distribute. The Court is not persuaded that Chess24 would be taking content from World Chess and merely "free-riding" or republishing the information for Chess24's own subscribers. Rather, the evidence presented indicates that Chess24 digests factual information about the Championship from secondary sources and creates its own website content at great expense […]
Second, World Chess must show that it is more likely than not to prevail should this action be tried in court […] World Chess has not met its burden.
The judge goes on to talk about legal precedents, explaining that the NBA vs. Motorola “Hot News” case that Agon cite was actually lost by the NBA – with the court upholding the right of other companies to build products around sports statistics. He summed up:
As an initial matter, the Court is not persuaded that World Chess alone can report on the Championship game scores. Indeed, it is well-established that sports scores and events, like players' moves in the Championship, are facts not protectable by copyright.
The judge weighs up the arguments of chess24 and World Chess and concludes:
On balance, the Court agrees with Chess24 that the public interest is best served by the robust reporting of factual data concerning the contestants' moves accompanied by analysis and commentary on the Championship.
You can read the full verdict below:
chess24's lawyers had only two days to counter long and complicated arguments from Agon, but fortunately they had a head start. To make absolutely sure chess24 was operating within the law, this summer a legal opinion was commissioned from a law firm with particular expertise in Intellectual Property law. They concluded that Agon had no right to prevent other websites or individuals from discussing the moves of the match, an opinion now supported by a US court. To make the arguments easily digestible they also provided them in FAQ form, beginning:
1. Are chess moves protected under U.S. copyright law?
Chess moves are not protected by United States copyright law. This is because, like sports scores and statistics, the moves that a player makes on a chessboard during a match are not creative works of authorship. The United States Court of Appeals for the Second Circuit gave the following explanation of the difference between facts and works of authorship in the context of sporting events:
“Sports events are not ‘authored’ in any common sense of the word. There is, of course, at least at the professional level, considerable preparation for a game. However, the preparation is as much an expression of hope or faith as a determination of what will actually happen. Unlike movies, plays, television programs, or operas, athletic events are competitive and have no underlying script. Preparation may even cause mistakes to succeed, like the broken play in football that gains yardage because the opposition could not expect it. Athletic events may also result in wholly unanticipated occurrences, the most notable recent event being in a championship baseball game in which interference with a fly ball caused an umpire to signal erroneously a home run.”
NBA v. Motorola, 105 F.3d 841, 846 (2d Cir. 1996). This conclusion has been reaffirmed in a variety of circumstances, including in C.B.C. Distrib. & Mktg., Inc. v. Major League Baseball Advanced Media, L.P., which noted that sports data used in a fantasy baseball league was “all readily available in the public domain.” 505 F.3d 818, 820 (8th Cir. 2007). Basic factual information about chess moves is no different from any other factual information generated from a sports match or other public event and thus cannot be protected under copyright law.
You can read the full FAQ below - please note the disclaimer at the end:
In a Bloomberg article entitled There’s Legal Intrigue at the World Chess Match, a Yale University Professor of Law also explained, “As a longtime teacher of intellectual property, I don’t think the law is on [Agon]’s side”:
Chess moves are just data, no different from who just threw a pick-6 on “Monday Night Football” or who just got killed on “The Walking Dead.” Agon is entitled to make a profit, but not by limiting the flow of information which, after all, just wants to be free.
So if the law seems clear, what about public opinion? Well, chess24 firmly believes that the vast majority of the chess world is against Agon’s approach this year. An e-mail written by 4-time US Champion Yasser Seirawan to some of his friends after the Moscow verdict recently came to our attention and we're grateful to Yasser for allowing us to share his off-the-cuff remarks.
Yasser talks about how the decision to block other sites reporting on the Candidates Tournament had affected him personally, discusses the legal action and goes on to express his shock at Agon's approach:
Chess event organizers have a monopoly on absolutely clear uncontestable copyrightable materials: They have all photography rights; all webcam rights (of the players in action over the board); all audio rights to their own online show; they have all post-game interview rights; including still photography, video and audio; press conference rights; they have all promotional rights that feature the players; they have merchandizing rights to the players' images and likenesses; as well as other numerous rights. They have exclusive rights to all these clear uncontestable universally accepted copyrightable materials allowing them to make the very best (online) show of their own event. They could press all these materials into a DVD or another product of their choice. How could any other party “compete” against such a show? Instead, possessing all these rights, what do they decide to do with their time and money? It really is crazy: They spend large sums to go after the one single right they do not have: Copyright of chess moves for a very, very small period of time. Why do they do this? To prevent others from promoting their event? It really is a self-inflicted injury that is plainly stupid. The chess moves of a chess game have been held to be in public domain for decades, even centuries. The recording of a chess move made is held to be a “fact.” As in, “On move twenty five, Magnus played: 25.Bxd5!, sacrificing his Bishop.” This is a fact. It happened. Today’s organizers accept that chess game notation falls into public domain but now they make a new argument: They have the copyrights to the chess moves during an event (only) and that immediately after the game is finished (not the event which is days and weeks long), only then do the moves of the games played fall into “public domain.” It is a staggering argument to make. In my view, it is just plain rubbish. How to argue that “ownership” is granted for hours or possibly even minutes? At which government agency should organizers “register” such “fleeting” ownership claims? How can one trespass a right that is not and cannot be registered anywhere in the world? Stupidity and stubbornness doesn’t come close to explaining their actions. It is something else. I don’t know what it is. Fear? Fearful that another site, featuring commentary (like that of a radio broadcast) will “cost” them viewers? I can’t explain it.
You can read Yasser's e-mail in full below:
This year chess24 has now “won” legal battles in both Moscow and New York, but the only real winners in such situations are lawyers. The cases have eaten up a huge amount of time and money that could instead have been devoted to chess, while also damaging the most valuable commodity chess possesses – its positive image.
chess24 hopes that the World Chess Federation (FIDE), which expressed doubts about Agon's approach in Moscow, can step in and persuade its partner to end all legal action and accept that chess moves cannot be copyrighted for any period of time. Then the chess world can return to working together to promote our game.