Two important events in the media industry occurred Tuesday - one more obvious than the other.
The matter, whose significance was apparent to nearly everyone, took place at the headquarters of The New York Times where President-elect Donald Trump gave an on-the-record interview with several of its reporters and editors. Since Trump hasn't given a press conference since his election two weeks ago, there was tremendous interest about what he'd say to a press outlet he has derisively tweeted is "failing." Trump made noise on many topics, including his opinion of Breitbart ("It's just a newspaper, essentially") and the First Amendment. "I think you'll be happy," Trump told his audience.
The spectacle was peculiar in the annals of American journalism in one respect. During Trump's visit, various Times reporters provided live-tweeting of what was happening. In turn, many other news outlets had stories up about what Trump was saying before The New York Times was able to provide its own.
Now what if The New York Times insisted it controlled the valuable information from Trump's visit and nobody else had a right to aggregate? For some answers, we turn to Tuesday's other important event - a decision by a New York federal judge.
First some background...
Down in lower Manhattan, there's a huge line to get into the World Chess Championship that pits defending champion Magnus Carlsen against Russian challenger Sergey Karjakin. The organizers of this 12-game match, Nov. 11-30, have gone to tremendous efforts to both stage it and reap the benefits of a real-time webcast on worldchess.com.
But there are interlopers, specifically Chessgames.com and Chess24.com, said to be "free-riding" by publishing competing live updates.
On Nov. 7, World Chess US filed a lawsuit, claiming $4.5 million in damages and demanding that defendants be restrained from a misappropriation of "hot news." An accompanying memorandum in support of an injunction spelled out the stakes.
"This case is about the World Chess Championship Match," stated the plaintiff. "It is also about the Internet. Ever since the advent of the World Wide Web exponentially increased the global flow of information, pirates have sought to capitalize on the effort of others by stealing their online publications and redistributing them for profit. These pirates seek to compete unfairly with those who expend time, labor, and money to create the valuable information in the first place.... If they succeed, the economic incentive to create and disseminate useful and entertaining content will be destroyed."
The case has at least some echoes of another that is pending before the 2nd Circuit Court of Appeals. Three years ago, Fox News sued TVEyes, a media monitoring service that allows customers (including The New York Times) to search, clip and share its programming virtually in real time. TVEyes used proprietary technology to index television context, hinting at a future where bots play a role in the delivery of factual information.
"If TVEyes is allowed to continue its willful free-riding on Fox News's programming, it will substantially reduce Fox News's incentive and ability to produce new content, jeopardizing both the quality and the quantity of premium news reporting available to consumers," stated the complaint.
After a judge in the TVEyes case granted an injunction that included restrictions on the sharing of Fox News clips via social media, the case went to an appeals court, with many media and tech companies weighing in on whether or not TVEyes had made a "fair use" of Fox News' content. A decision is forthcoming.
World Chess is hardly the first to claim hot news misappropriation. As another example, the National Basketball Association in 1996 filed a lawsuit against Motorola over a handheld pager marketed under the name "SportsTrax," which provided users updated information of games in progress. The case went to the 2nd Circuit, which rejected the notion that games are works of authorship protected by copyright law, but was more receptive to the NBA's hot news claim. Ultimately, however, the professional basketball league lost because it hadn't shown any damage to any of its products based on Motorola's free-riding.
Has the commercial environment changed in the two decades since? One might wonder based on the National Football League's move last month to restrict its teams from using video or posting GIFs on social media. The eyebrow-raising fiat from the office of Roger Goodell occurred as the league experienced a TV ratings slump.
Now back to the World Chess Championship lawsuit.
On Tuesday, a few blocks away from where the World Chess Championship is being played, U.S. District Judge Victor Marrero denied a restraining order and preliminary injunction.
"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," he wrote in the opinion (read here). "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."
Marrero also went on to find "no material difference between the facts presented here and those at issue in National Basketball Association," referring to the case noted above. "Indeed, it is well-established that sports scores and events, like players' moves in the Championship, are facts not protectable by copyright."
That's both bad news and good news for news outlets.
On one hand, there's the Fox News argument that usurpers can go too far, that those tuning into the aggregators or pirates won't be counted in ratings, meaning lower carriage fees, and potentially undermining an incentive to invest in news-gathering.
Then again, there's Donald Trump.
Again, he's not given a news conference in quite some time. During the campaign, he refused to give press credentials to The Washington Post and several other news outlets. Trump pledges he won't do this in the White House, but there's no guarantees nor any constitutional right for the media to get press briefings. If Trump wishes, he can do what Vladimir Putin largely does and deliver information to merely the news outlets promising to present it positively. Yesterday, he spoke to The New York Times, but maybe in the future, it will be Breitbart, once run by his chief strategist Steve Bannon. And what if then, Breitbart decided to go after any media outlet daring to re-report Trump's commentary?
That's a few moves ahead on the political chess board. For now, reporters are tweeting Trump's First Amendment epiphanies while a judge is allowing many websites to report the Russian's chess moves.