Taking chess into the courtroom: an out-of-bounds assertion of copyright on chess moves

This is a bit old, but the topic once again came up in conversation when I was chatting on FICS (freechess.org).

According to this chess24.com blog post/press release, a US Federal judge denied monetary damages and a temporary restraining order sought by Agon (World Chess US, Inc. and World Chess Events Ltd.) against three different companies which run chess websites, including obviously the aforementioned chess24.com (the other two sites, it appears, are chessbomb.com and chessgames.com). Essentially Agon claimed copyright over the actual moves of a chess game and thus the ability to control their broadcast. The ruling establishes once and for all that the moves of a chess game cannot be copyrighted; however, the commentary and analysis of a chess game can still be copyrighted as before.

The judge got this one right in throwing out the lawsuit and restraining order. Apparently, common sense was lacking at Agon, something I would hope has been rectified going forward. The current knowledge base of chess, backgammon, checkers, and other board games comes from the moves of all games played before under the same ruleset. (The rules of chess have changed over the centuries, with the most recent rule change regarding the actual play coming sometime in the 19th century, that being the elimination of a requirement that pawn promotions be to a piece already captured, e.g. allowing a second queen or third knight, rook, or bishop. See Wikipedia for more details.)

The article quotes an email from Yasser Seirawan, which I think says a lot about just how absurd Agon’s position was:

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.

[…]

[P]ossessing 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.”

[…]

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?

Indeed, the idea that one can claim only copyright over the live broadcast of an event is absurd. To be fair, the live broadcast rights to NFL football games are probably its most lucrative property, and the NFL (and AT&T, the owners of DirecTV) would much rather you buy the NFL Sunday Ticket package for you to follow an out of market team than set up a bootleg live feed from your friends in whatever city. (Actually, the NFL and AT&T would be just as happy if you went to a local sports bar that paid the commercial rate for NFL Sunday Ticket, but that’s another story…)

There is really no such income stream from the live broadcast of a chess game, match, or tournament. I hate to admit it, but chess is incredibly slow-moving (most of the time) compared to football, basketball, ice hockey, baseball, MMA, boxing, and auto racing. For that matter, the pace of the game moves slower than even golf, which is hardly the biggest draw on television these days, though it still gets plenty of TV time. Even blitz chess is probably too highbrow for the large audiences that watch sports like football and basketball. Thankfully, for now, we have the Internet for the things too narrowly focused for the 500 channels of cable TV we were promised with the “information superhighway.”

The chess24.com article ends with the following quote:

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.

Attorneys (lawyers) do perform a valuable service for society. To say the least, I would probably not be here to write this blog post were it not for the services of attorneys over the years. I know a lot of people love to make jokes about lawyers and they are probably one of the least-respected professions in existence. It is easy to overlook the good that the good lawyers do, including those who take cases at no cost to the represented (“pro bono”, which literally means “for good” in Latin, referring to the greater good).

The attorneys defending the companies behind these three websites, and in a broader sense, the legal rights of the chess community to discuss and share the moves of high-level games in real time, did not work “pro bono”. Those companies had to pay the attorneys quite a bit of money–and that is money that could, and should, have been used for promoting the game of chess instead. I’m not sure who is responsible for contracting with Agon to be the promoter of chess events, whether it’s someone at FIDE or elsewhere, but this role should be rethought. I would like to see it required, as a condition of organizing future events, that Agon either repay the legal fees of the companies and individuals they sued, or donate an equivalent amount of its profits, adjusted for time value, to national chess federations and/or non-profit online chess-related websites/communities. Nowhere does chess24.com make their legal bill totals public that I can see, but I can imagine the total going into six figures easily, if not surpassing the million-dollar (US) mark.

If Agon is unwilling to do this, then they need to be replaced with promoters who actually give a tinker’s damn about the right thing to do. If we do not hold Agon accountable for trampling on our rights as chess fans and players, then they are free to do it again and again at their leisure, which is completely unacceptable.

Leave a Reply

Your email address will not be published.