Columns | March 04, 2009 1:10

Copyright on chess moves - shadows on the wall?

Copyright on chess moves - shadows on the wall?Last week, ChessBase was apparently 'forced to cease Internet broadcasting of the Topalov-Kamsky match'. As we noted in our report on the first match game, live broadcasting of the chess moves in this match without permission was prohibited by the Bulgarian Chess Federation (although they didn't seem to have a problem with Chessdom's, Crestbook's, ICC's and TWIC's live coverage). This has led to heated discussions on this site. The key question here is: can you copyright a chess move at all?

The above quoted article on the official match site doesn't address this question: it merely gives an overview of the actions which were taken by the lawyers of the parties involved. It ends with a quote from the president of the BCF, Stefan Sergiev:

This is a precedent in the world of chess and we are grateful to attorney Polzin for his assistance. This case will serve as a lesson to everybody who violates the copyright law.

Well, perhaps, but without concrete arguments (instead of words of barely concealed triumph) it all remains very mysterious. And it's such an interesting question! You can look at it from a legal point of view, from a philosophical point of view and from a historicial point of view. The very fact that it has been debated since the rise of professional chess (over 150 years ago) as this thorough overview by Edward Winter shows, indicates the complexity of the question. You should really just read the whole piece yourself, but let me just quote what Capablanca had to say about the matter:

A chess game, from its very nature and the manner of its production, must be the joint property of the two persons producing it ... You can charge what you like for the publication of the games in any form you may deem to your advantage. But, unfortunately, that is a common privilege, of which anyone may take advantage.

Capablanca's opinion raises the question what this 'very nature' of a chess game is, exactly. Basically, a chess move seems to be information. But what kind of information? That's a philosophical question, and it has obvious consequences for copyright issues. I like Macauley Peterson's definition of moves becoming 'factual events in the world', but I don't think it's so easy to say that because of this, there can't be copyright on them. In fact, there's a whole branch of copyright theory that deals with this question. To quote the Wikipedia article:

There are many other philosophical questions which arise in the jurisprudence of copyright. They include such problems as determining when one work is "derived" from another, or deciding when information has been placed in a "tangible" or "material" form.

This seems to go to the heart of the matter. What is a chess move, apart from a physical act ('event') by one player moving pieces on a board? Is it a 'thing'? A thought? Does it exist somewhere in time or space? When I think of a chess move in Amsterdam (say 1.e4), is it somehow different from Topalov thinking that same move in Sofia? Does it change by him actually playing that move? Anyway, aren't all thoughts free?

From a legal point of view, I haven't been able to find any laws or jurisprudence on the this matter, even though many commenters have said that there are certainly laws that deal with this question. But what laws exactly? In the Topalov-Kamsky case, are we dealing with Bulgarian law? With EU regulations? Or, in ChessBase's case, even with German law (as the article on the match site seems to imply)? Things are, in my view, complicated by the fact that we're dealing with broadcasts on the internet: in other words, in a global, virtual environment.

The whole copyright discussion has changed heavily since the rise of the Internet. A very interesting speech (and following discussion) by Richard Stallman, founder of the Free Software or GNU Project. which he held at MIT some years ago, deals in a fundamental way with many of the issues of copyright and the new virtual world. His point of view, too, has many shades of grey, as the following excerpt shows:

[I]nstead of increasing copyright powers, we have to pull them back so as to give the general public a certain domain of freedom where they can make use of the benefits of digital technology, make use of their computer networks. But how far should that go? That's an interesting question because I don't think we should necessarily abolish copyright totally. The idea of trading some freedoms for more progress might still be an advantageous trade at a certain level, even if traditional copyright gives up too much freedom. But in order to think about this intelligently, the first thing we have to recognize is, there's no reason to make it totally uniform. There's no reason to insist on making the same deal for all kinds of work.

The discussion about the difference between a textual representation of a move (or a game) and the actual live broadcast of the game on, for instance, Playchess or ICC (or indeed here on ChessVibes), reminds me a bit of Plato's Theory of Forms and his famous Allegory of the Cave: isn't a chess broadcast merely a 'shadowy projection' of the Idea of a chess game? And isn't it silly to worry about these projections which are, after all, merely a weak reflection of the Truth?

Platco's Cave

Engraving of Plato's Cave, 1604

Of course, the matter will be (and has been) discussed over and over again on the internet and beyond. We have actually mentioned it before on ChessVibes as a commentary on the popular Monroi gadget. I do not want to formulate a definite opinion (yet). I've just tried to collect some links throwing (I hope) various lights on the matter. Have a look at them. I hope you will agree with me that, really, things are never that simple.

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Arne Moll's picture
Author: Arne Moll

Chess.com

Comments

GuidedByVoices's picture

Well Thomas, to be perfectly honest, I lost interest in this discussion as I noticed that most people insist to take it nowhere... Meanwhile, I have got the feeling that this is a hot and relevant discussion topic for chess and, in this context, I have tried to make several strong points which I feel were never actually addressed... So why to continue posting?

Anyhow, Fernandez (“the big fish”) made some trivial maths to show that any given GM would receive less than peanuts out of copyright contracts and databases being sold from a commercial platform and market comparable to Chessbase. My point here was quite different, I said the ACP should be collecting the money to raise a trust which might be used for instance for some kind of health insurance for retired chess masters . The problem I see with being a professional chess player is that is already tough enough as a mean to make a decent living, let alone this profession isn’t really formal...

To my mind, ACP = professional chess players taking care of their colleagues, whereas Friedel = someone making money out of alien gruelling effort.

Why have I pointed Friedel so insistently? He is not actually breaching any chess game copyright, because there is not one out there; but to show what actually happens just because professional chess players have not been able to bring such copyrights about.

Can copyrights be brought about? Of course they can. Most people participating in this debate does not recognise chess as an extremely demanding job, a nearly scientific search for the truth, stained by a nice aesthetic component, which also involves a sporting component. Why should professional chess players leave the business part of chess in the hand of a mere aficionado like Friedel?

I am fully convinced any human creative effort (intellectual effort if you prefer) may be subjected to copyright laws. A completely different matter is that this will never happen out of a discussion like the one taking place here, with not real intention to change the current “state of the art”... You need the ACP board to discuss all these issues with lawyers who specialise in copyright issues...

Having said all that, before leaving this dying thread of discussion for good, I would like to address your interesting points as follows, Thomas:

In the field of my scientific work (Physiology), I use to publish in Journals like: Endocrinology, Journal of Physiology, Molecular Brain Research and others... From this background I would compare scientific and chess publication issues, more or less as follows:

Experiment = chess tournament
Raw data = score sheets of the games played in a given tournament
Proceedings = chess magazine (NIC, etc)
Research paper (peer-reviewed standard) = a game played and/or deeply annotated by a professional chess player (GM, IM and/or FM standard).
A Review paper = a book, for instance “Fire on the board” by Shirov or the nice book on Zurich 1953 by Bronstein...

But clearly, in the face of formal science (where any given paper may cost the supporting government agency something like £ 100,000), one is reminded that chess is only a game after all!

Oooopsss, you may now spot where I live... But not where I come from anyhow, because my English is decent but not really good! BTW, I am a killer 4NCL player!

Frank van Tellingen's picture

Dear Arne,

Leaving philosophical confusions for what they are, I decided to ask my good friend Ilan de Vre for his opinion, who is currentlcy an IO (intellectual ownership)-lawyer at the well known dutch firm 'Kennedy (Van der Laan)'. So here is my report of an expert's point of view.

Protecting with copyright can only be done if something is 'a work'. THAT's the real crucial part in the definition you quoted from wikipedia's article.

They include such problems as determining when one WORK is “derived” from another, or deciding when information has been placed in a “tangible” or “material” form.

The point being that chess moves do not - legally - count as a 'work'. What does count as 'work' would be an analysis of a chess game. Copyright is meant to prevent others taking advantage of my hard work. Compare it to football matches:
you can get copyright on the images of a game because reporting the game counts as 'a work' (meaning: the journalistic effort of capturing the images and reporting etc.). However the moves of the football match (like the dribbles of Ronaldo) cannot be protected by copyright. In the same way the moves of a chess game cannot be protected by copyright.

As I understood it, but I am happy to ask Ilan to join the discussion, there is a huge difference between buying the rights to televize a football match. This would be legally impossibile considering a chess game in a tournament. Legally one could only protect the right of broadcasting this chess game in a certain way, but one cannot legally be prevented to braodcast a chess game in some other way (using another applet).

Tarjei's picture

It's worth to mention that a few years back, the organizers of the individual European Championship made some serious lawsuit threats against ICC and even published a statement on the site saying that ICC violated copyrights. Even though they seemed quite serious with their threats, the case died out once they realized that ICC always ignores such threats.

Organizers of the Dortmund super tournament also tried to charge for access to the live games a few times, but seeing that most people are not willing to pay for just the moves to these evens when they can follow it on chess servers, they gave that up quickly.

It seems obvious to me that instead of accusing chess servers of violating copy rights and working AGAINST them, they should instead work WITH them. This would be beneficial for the tournament's popularity, which against would please the sponsors. You just can't copy right chess moves.

Castro's picture

Oh Lord! :-)

"just the moves"
"copy right chess moves"

These kind of expressions, added with the usual mixing with practical questions about a (I agree) somewhat legaly blured scenario, makes justice to the subtitle of the article: "Shadows"!!! (on peoples eyes! But we still can see, you know?)

Arne Moll's picture

Castro, I'm not sure what you mean, but in any case, in my view the moves of a chess game are not the shadows on the wall - they are the Forms itself. And yes, I know the analogy doesn't work 100% - analogies never do, that's why they're called analogies, not equations :-)

John Fernandez's picture

@Castro The facts of the event (moves, move times, result) are facts, not copyrightable. Making random analogies about dogs and chairs isn't really relevant.

@Tarjei Yes, this is something that has been going on forever. Every year some organizer somewhere comes up with some random demands about game broadcasts. As an aside, this was something I remember us looking into at X3D for the Kasparov matches, and the lawyers we'd spoken to basically just laughed at the concept.

Castro's picture

@Arne Moll
Sure, you're right about analogies. But if you insist in presenting something by an analogy which is very remote, because born out of distorting and/or forgeting essencial data, it is not an useful analogy (to say the least).

@John Fernandez
The analogy with the dogs and chairs sylogism makes sense, because it presents the same lack of sense of your "equalities".
The "Images of a chess match" can be considered "Images of a sporting event", but have 1/1000 of the public interess of images of almost all other sporting event. Somehow it is crucial here, but somehow you "forget" to consider it.
As for the "Gamescores of a chess match" being equal to "Statistics of a sporting event", well this one is far worse! Myself, MM (and maybe others) have already dealt with that. No offense, but it's a childish aproach. Dogs and chairs being equal (because both have something in common) come imediately to mind...

John Fernandez's picture

@Castro

Copyright doesn't make qualitative judgements. A Picasso painting has the same copyright protection as a scribble from a three year old. The approach isn't childish, your approach is simply wrong. The fact that there are multiple people arguing it doesn't make it any more correct. It's, simply put, embarrassingly wrong.

Castro's picture

@John Fernandez

:-)
I'm not perfect, but surely I wouln't make the (also childish) mistake of calling the number of people with a certain opinion in order to legitimate that opinion. And so I DIDN'T! Try reading again. Again a try to distort facts, which maybe you should see doest't work a lot, from you to me ;-)
As for the Picasso thing, many things were said here that destroy that analogy, and you don't even imagine how much of your distorted related things I let pass. For instance: "Facts" not being copyrightable, one understands. But a move in a chess game is as much of a fact as a kick in a ball. Not "scores", of course.
Other: If I were to use your "logic weapons", I could easily ridiculise your importance to the laughs of the lawyers (we'll see who laughs last!).
Am I wrong? Who says? The actual presenter of the easiest refutable arguments here? Ok, I'll laugh too.

Arne Moll's picture

@Castro, the best analogies are often the most 'remote'. Try picking up a book by Douglas Hofstadter sometime, you'll be surprised. Not that mine was so great, of course, but .. oh well.

Arne Moll's picture

Hi Frank, I'm afraid your post has made my confusion even bigger, because I'm pretty sure most if not all chess professionals would by definition consider making (strong) chess moves very real 'work' indeed!
Of course I understand the moves of a game 'as such' cannot be copyrighted, but surely making these moves can? Or am I missing something here?

Castro's picture

Among many other things one can say regarding this "new" perspective (and sayings), the "work" (or property) of those organizing and allowing (or not) some (crucial) information to get public (in this or that form) during the games must be taken into consideration too.
Imagine that you try to make some money on some kind of broadcast of an elite chess tournament.
If you try to sell video images of an elite chess tournament by which the moves are not visible, no one will buy them. They'd be 100% disapointing.
If you sell (or allow to be taken) video images where the moves are visible in real time, of course you can make big money, but because of the moves!
If then people know that, besides the video images, everybody could freely transmit the moves in many sites, the original video images loose almost all their value!
Doesn't it make yet another hint that there is "work" (or interest, or property) besides "making (strong) chess moves" or "journalistic effort-type", in the broadcasting of moves of a chess tournament in real time?

Castro's picture

I'd like to see someone making any interesting money out of TV broadcasts of a chess tournament from which the public could only see the moves AFTER the tournament (or even after each round).

Castro's picture

Calling it "broadcasting" or not, that's rights on that we should be talking about.
"Copyright on chess moves" surely not, in any of the scandalous/bombastic meanings it can have.
"14. Qxh7" is as uncopyrightable as (for exemple) the word "Morning", or the sentence "You sleep in the morning", that I could easily agree.

Dragan's picture

Long time ago I had some version of Football Manager. They used real names of players, but instead of one, there was only nr. 9. Other firm had copyright on name. Assuming that I still have right to use my name, I can ask from ChessBase to remove it from commercial program, for example Mega 2009. They can publish all my games, but without connection with my name.
Am I right or wrong ?

patrick's picture

I am a lawyer in Los Angeles. Under American law i seriously doubt you could copyright chess moves. You can only copyright particular expressions of an idea-- you cannot copy the idea itself! In chess, the idea of a move is "merged" with the expression as XTRA astutely noted above (not sure if he is an attorney but he thinks like one!). In other words there is only one way to express the idea of queen takes h7, check, on move 14 in a certain position. Thus the "merger doctrine" would apply to wipe out any copyright protection for the expression/idea 14.Qxh7+. You can copyright the selection and arrangement of games/variations, and you can certainly copyright editorial expressions such as += , "With compensation", !?, ??, etc... The solution is to have contracts to secure exclusive broadcasting access, rather than some feeble attempted copyright protection that (in my opinion) judges would simply laugh at.

Castro's picture

:-) Right! Even lazyness! (Because it's MY own copyrighted lazyness)

Johny's picture

Isn't everything considered 'work' these days?

Arne Moll's picture

I'm sorry Castro, I hate to point it out to you, but you still seem to have missed the main point, despite various people trying to point it out to you. This doesn't prevent you from using friendly words like 'bombastic', ' ridiculous' and 'stupid' again and again. Perhaps if you could express yourself in proper English I would understand what you mean, or you would understand what I meant, but for now, I give up.

Castro's picture

Imediately when begining to read those words of yours, I though "Maybe it's my bad English" :-)
Yes, words are "dangerous" and misleading. That you could have seen from the start (your start), and about that yes, you could do something other then giving up.

Castro's picture

@The Closet Grandmaster

LOL That thread on that other forum is hilarious (artical and some posts)!
The moral lesson: It's always possible to do worse.

Castro's picture

Sorry: *article :-)

Castro's picture

Arne, passing here again, I read again your observation, and you're right complaining about my ugly expressions ('bombastic’, ‘ ridiculous’ and ’stupid'). My bad english doesn't allow being rude, and so, even if it wasn't my intention to be rude, I apologise, because maybe I could have found more friendly expressions.

The Closet Grandmaster's picture

This story has now been picked up here: http://www.techdirt.com/articles/20090305/0158524003.shtml#comments. See especially comments no. 20 and 29.

- TCG

Rodzjer's picture

I just love discussions, for the sake of discussion! Feels like people speaking, only just because they like to hear themselves.

Castro's picture

@Dragan
:-)
It's a different issue, but I'd say no, or at least very difficult, for instance because somehow it's understood that if you played those events, you were aware of the "common practice" of the games being published. That's the problem of "common practices".
But if you fight, maybe in some years your reason will be recognised. Try getting Kasparov on your fight ;-)

John Fernandez's picture

@Dragan,

Many sports leagues have organizations which protect the images and likenesses of professional athletes with licensing deals. Occasionally, superstar players will opt out of such agreements and create their own licensing.

Sadly, there's really no such market in Chess, so such an organization would make zero sense.

noyb's picture

The notion of copyrighting an order of moves in a game of chess is ludicrous. Fortunately United States judges have already set this straight.

cyronix's picture

there are no copyright or broadcasting issues ...
It's just a reaction by the bulgarian chess federation to the bad treatment of topalov by chessbase in the topalov-kramnik match.

dandylion's picture

Chessvine

If you play the Catalan, of course not , you don t owe a royalty to Kasparov.

You owe a royalty to Xavier Tartakover.

brujito's picture

Boxing matches are often relegated to a "pay-per-view" broadcast, but that doesn't stop you from throwing a jab without being arrested...

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