Candidates' To Start Friday; Agon Blocks Game Transmission By Chess Sites

The organizer of the FIDE Candidates' Tournament, which starts Friday in Moscow, has shocked chess websites with the announcement that its live games will be available exclusively on the tournament website.

This is not your ordinary tournament preview. Sure, below you can find the most important information to get you all warmed up for what is surely the most important tournament of the year. However, a remarkable decision by the organizers might well be the biggest story here, and it deserves a lengthy discussion (see below).

What, who, where, when?

The Candidates‘ Tournament is the penultimate event of a long world championship cycle that eventually will result in the November title match to be held in New York. So, what's at stake is very simple: the winner of the Candidates‘ is allowed to challenge reigning world champion Magnus Carlsen in that match! In other words, it's all or nothing, and only first place counts.

By now you'll have seen almost all participants making an appearance on Chess.com with each player getting a full profile article. If you haven't seen those yet, you can find them all here.

The full pairings of the tournament were published by FIDE on February 11.  You can find them here. The first round, to be played this Friday, will see the two Russians and the two Americans face each other: Karjakin-Svidler and Nakamura-Caruana.

That's no coincidence; according to the regulations players coming from the same federation will play each other in rounds 1 and 8 (and rounds 6 and 7 have been exchanged to avoid the same color for three consecutive rounds). The round 1 pairings include Giri-Aronian Levon and the first game between the two 40+ players, Anand-Topalov.

The tournament will run March 11-29 in the DI Telegraph space in the historic Central Telegraph building. The total prize fund is €420,000 with the Tashir Group as the main sponsor (described as “general partner” by the organizers). The games start 3 pm local time, which is 4 am Pacific, 7 am New York, noon GMT or 1 pm CET.

The event is organized by Agon Limited, the company that owns the commercial rights to FIDE's world championship cycle. It also organized the 2013 Candidates’ Tournament, when Andrew Paulson was still the CEO. A more recent event they did, with the new CEO Ilya Merenzon, was the World Rapid and Blitz Championship last fall in Berlin.

What will it look like?

A few days ago the organizers distributed preview images of how the playing hall will look like. According to their description...

[t]here is a a fully integrated area with distinct spaces for the competition, news conferences, and for spectators who want to watch the games directly, listen to commentary or possibly play some games themselves. There are also features, such as the spacious TV studio for live broadcasting, news conferences and small talk-shows — steps to making top-level chess events comfortable for both visitors and online viewers.

A preview of the playing hall courtesy of Agon. Find more here.

Agon blocking the live transmission of the games

A few days ago Agon shocked chess websites with its announcement that not only the video footage but also the actual chess games will be available exclusively on the website WorldChess.com (and “approved broadcast partners in certain countries,” which seems to be only NRK in Norway at the moment).

In other words, Agon intends to make it impossible for e.g. Chessbase, ICC, Chess24, Chessdom, Chess.com and others to transmit the games in real time. Agon wants to follow this strategy for all its future events including the 2016 World Championship in New York.

Agon's motive for claiming exclusivity is to gather all chess fans, normally scattered around watching games on different sites, to their own website, thus maximizing viewership. “This is simply a way to protect commercial value,“ said Ilya Merenzon in the press release. “If we are to continue to grow the global appeal of chess for the benefit of all fans of the sport, we need to attract and retain further commercial sponsors.“

Normally chess sites receive a link to a “live PGN file” that sits on the server of a tournament organizer, and which is based on the feed of DGT boards. The PGN file gets updated automatically, and as a result the games on the different chess sites get relayed live. Part of Agon's new policy is that this live PGN file won't be provided, so if chess websites intend to ignore the legal language and transmit the games anyway, they will have to enter the moves manually. (Chess.com thus far lacks the technology and always relies on volunteers to bring grandmaster games in Live Chess.)

White paper

On its website Agon has posted a white paper that supports its decision legally (here in PDF). Agon states that chess moves lack the necessary elements to be considered a copyright object. (This is one of the reasons why Silvio Danailov's court case against Chessbase in 2011 was rejected.) Therefore, to protect the chess moves played by the eight top grandmasters Agon needs “additional legal tools.”

Their plan is to work with contractual restrictions and with a so-called clickwrap license agreement, meaning that users of the tournament website will need to agree to the Terms of Use before accessing the games. These terms may include restrictions on using and distributing game information. For instance, this way online viewers but also journalists in the press room in Moscow may be prevented from sharing the moves to the outside world.

Both Russian and U.S. law are mentioned in the white paper. According to Agon, Russian law supports the aforementioned contractual restrictions, whereas in U.S. law (specifically New York State law) the “hot news doctrine” is relevant: information that's written or televised, that has value for a short duration, and that will lose (some of) that value as it becomes part of the public domain.

“Hot news doctrine”

Agon cites the well-known court case NBA vs Motorola from 1996-1997. The basketball association wanted to protect its real-time statistical information which Motorola was distributing via a mobile pager system. The NBA lost the case.

A legacy of this court case is a list of five requirements that need to be fulfilled for “hot news” misappropriation to survive copyright preemption:

1. the plaintiff generates or gathers information at a cost;
2. the information is time-sensitive;
3. a defendant’s use of the information constitutes free-riding on the plaintiff’s efforts;
4. the defendant is in direct competition with a product or service offered by the plaintiffs;
5. the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.

Agon's white paper ends with:

Taking into consideration the nature of the chess game and the value of its textual move- by-move broadcasting, it is safe to assume that all the five elements are met in a case concerning the live broadcasting of a chess event.

The First Amendment

In his very relevant paper “Real-time Sports Data and the First Amendment”, published in the summer of 2015 (in PDF here), Dr. Ryan Rodenberg, Assistant Professor in the Department of Sport Management at Florida State University points out that a defendant in a court case has another line of defense: the First Amendment. A court would not only consider whether the quintet of elements for misappropriation under NBA v. Motorola were met, but also whether the defendant could claim free speech.

Rodenberg mentions two more points that might be relevant in a court case: 1) whether the venue is a private or a public building and 2) whether information is distributed to third parties by a non-commercial spectator, or e.g. a journalist. A spectator in a public building would have a much stronger case to rely on the First Amendment than a journalist accredited to a private venue, as the Candidates’ is likely to be considered.

Rodenberg also pointed out to Chess.com that at tennis tournaments a statement like the following is common:

No ticket holder person may continually collect, disseminate, transmit, publish or release from the grounds of the Tournament any match scores or related statistical data during match play (from the commencement of a match through its conclusion for any commercial, betting or gambling purpose).

What is a proper delay?

Whereas it acknowledges that chess games are part of the public domain, Agon mostly has a problem with other sites showing the games in real-time. It will therefore ask chess media to deliver the games to the public with a time delay. Taking into account the five requirements of the ”hot news doctrine,” relaying the games with a delay seems a serious option for chess sites.

The big question is: what is a proper delay? Talking to Chess.com Mr Merenzon has mentioned a delay of an hour, but that seems very long. Chess sites are probably thinking in an order of minutes.

Mr Rodenberg sent Chess.com another example of Terms that are common at tennis tournaments, where an accredited journalist must refrain from...

“disseminating, transmitting, publishing or releasing from the grounds of the Tournament any live match score or live related statistical data until 30 seconds after the actual occurrence of the incident of match play or action that leads to such live score update (e.g., a point being scored), and that such use shall be solely for news reporting and editorial use.”

Chess sites comment

At the time of writing one website has taken a very critical stance against Agon. Chessdom.com, of Bulgaria, today called the decision a "blunder":

“The Candidates will have live coverage on Chessdom. Not the one that will allow you to bully journalists with lawyers, but the kind that will bring the daily LIVE chess fun for the fans.”

Chess24's Macauley Peterson noted that “live move data (typically, but not necessarily in PGN form) should be thought of as a "public good".“

[Update 9 March: what follows is Peterson's personal opinion. For the moment Chess24 refrains from commenting.]

He told Chess.com:

“Therefore we favor open access to games data, and set up HTTP access to all events we broadcast (on request) for that purpose. When organizers upload live games to our platform, the HTTP paths to those live PGNs are provided to organizers expressly to be shared with third party chess servers who require access to the live game feed. The only exception is when the organizer requests a reasonable delay in the live games as an anti-cheating measure, in which case the HTTP paths shared incorporate that delay (which of course needs to be applied universally to have any efficacy).

We have resisted any suggestion of restricting PGN access, even with organizers with whom we have a commercial relationship, and also lobby against the use of delay as an anti-cheating measure, which we feel harms the broadcast unnecessarily. The games from the Candidates will be available on Chess24, although it remains to be determined what, if any, delay will be incorporated in our presentation.”

Sharing his personal view, Chessbase's Albert Silver stated:

“Agon's comparison with broadcast is complete nonsense. they can control the video of course, who takes pictures, etc. but the moves? No chance.”

ICC and Mark Crowther (The Week In Chess) refrained from commenting.

Conclusion

Agon's motif for protecting the live transmission of chess games is understandable: they invest time, money and energy in organizing an event, and to attract sponsors high numbers of website visitors are needed. However, it remains to be seen whether their new policy is possible from a legal point of view.

At the moment it's unclear whether the five requirements of the “hot news doctrine” are met in case of a live transmission of chess games. Besides, a spectator or journalist could possibly rely on the First Amendment when distributing game information to a third party. (Besides, what if the information is “leaked” via a spectator/journalist to a third party, and a chess site will rely on that third party to retrieve the data, thus indirectly obtaining the data?)

Chess sites are likely going to transmit the games of the Candidates’ anyway, but with a delay. Chess.com is at the moment considering its actions with regards to the new developments.

In the following week it will become clear whether the (online) chess world will be very different from now on, or not. Fans will watch the games one way or another, and the Candidates’ Tournament will surely be a fascinating and historic event.

Update 9 March: in a legal letter sent to chess websites, Agon has now specified its desired delay: not one but two hours.

“However, we would like to mention that you are free to use the information about chess moves of any game of the Tournament two hours after the end of such game - we will be publishing PGN files for universal use shortly after the game finishes.”