Re: chess moves

I'm getting pretty tired of this thread (reproduced below, with additional comments); but since you don't seem to understand my point, I'll try one more time.

Let's get back to basics. Exactly what is it that you are trying to protect? Are you trying to protect individual chess moves [White's queen-side Knight to R4], or are you trying to protect an entire game of chess, i.e., sequences of alternating moves? And what are you trying to accomplish? To prevent others from using the same moves you've made? Or to prevent others from reproducing a record of a particular game? I don't think any of these things is protectable, but each one would be analyzed differently.

Copyright protects "original works of authorship." We agree (at least in theory) that a particular set of moves could be original, but it still has to be a work of authorship. Sec. 102(a) lists eight categories. Which is it? A chess game (as a series of moves) isn't a literary work, a musical work, a dramatic work, a pictorial, graphic or sculptural work, an audiovisual work, an architectural work, or a sound recording. At best, it is a choreographic work (pretty weak, but the only place it could fit). But people don't watch chess games for the choreography (i.e., the reproduction of a fixed series of moves); they watch it to see who wins and loses, and what strategies are chosen. The point is for the next game to be played differently from the last one. If it is played exactly the same as a previous game (reproduced), why bother?

To be protected, a work has to be fixed in a tangible medium. But the moves aren't fixed in a tangible medium when they are made; they are unfixed unless and until someone records them. When someone records them, it is the RECORD that is the potentially copyrighted work of authorship, not the moves themselves. NBC can make a videotape of a football game, but the copyright only protects against the reproduction of the tape; it doesn't prevent anyone who saw the game (live or on TV) from describing the game in his or her own words. The outcome of the competition, and of each play, is a "fact" that is free for anyone to report.

On 05/11/2000, Thomas Workman <tworkman[_at_]erols.com> wrote:
>
> On Wed, 10 May 2000, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
> >
> > On 05/09/2000, Thomas Workman <tworkman[_at_]erols.com> wrote:
> > >
> > > I disagree with the rationale that chess moves are not protectable
> > > because to do so would inhibit play of the game. Under this logic,
> > > music would not be protected because to do so might inhibit
> > > composers from creating new works.
> >
> > I disagree with your analogy. Unlike music, chess is a competitive
> > enterprise.
>
> I am not sure how you define "competitive". Composers are
> certainly competitive, as are jazz musicians who compose on the fly.
>
> > The whole point of the game is for players to compete.
>
> As an amateur musician and one who once played chess competitively
> (I was not good at it, however) -- I do not see the distinction. When
> I sang with the Boston Pops, or the Tanglewood Festival Chorus -- the
> making of music was very competitive. The commissioned works were
> very competitive, on the part of the composers. The Boston Symphony
> is very competitive in making recordings of classical works, and
> competition for individual seats in the orchestra is highly
> competitive (The BSO is the sixth highest paid orchestra in the world,
> when I last studied the union charts that were posted backstage at
> Symphony Hall in Boston). I never heard of a competitive aspect of
> a work as having any bearing on the ability to protect the work with
> a copyright. The BSO vigorously protects its intellectual property.

Music may be competitive in the sense that composers and performers want to be deemed "better" or more well-known than others, but it is not a competition in the sense that any given performance is a contest. A performance is a collaboration between the composer and the performers in order to create artistic expression. It is not a competition. The Boston Symphony isn't trying to beat the soloist or the conductor (or the Tanglewood Festival Chorus) to the finish line. With chess, each game is a contest, with a specific outcome.

> > If one player cannot copy another's moves, competition is stifled.
>
> If composers did not copy the style of other composers, we would
> not have a body of classical music that we do today. Traditional
> musical performances were once radical, and "unique". They are not
> today. Does that make them "functional"? Many musical instruments
> can only play discrete notes (the piano, for example), which would
> make all music for them "functional", yes?? Other instruments have
> the complete spectrum of pitch (the trombone or violin, for example).

Style IS functional, and is not protected by copyright. Individual discrete notes are not protected by copyright. Only particular works (combinations of notes) are protected by copyright.

> > It would be like holding a high jump competition in which only one
> > jumper could use the Fosbury Flop. Since that is the most efficient
> > way to clear the bar, the result would be foreordained.
>
> Not subject to copyright, because not "fixed in a tangible medium",
> true?? I lost you in the introduction of this thought into the
> discussion.

A "method of operation" can't be protected by copyright, whether or not it is fixed in a tangible medium. The Sicilian Defense is a method of operation. If the first person who used the Sicilian Defense could prevent other players from using it, it would make a mockery of the competition.

> > In this respect, chess moves [and combinations of chess moves]
> > are essentially "functional," and fall within the proscription
> > of 102(b) against copyright protection for any "idea, procedure,
> > process, system, method of operation, concept, principle or
> > discovery." A chess move is a method of operation.
>
> Concert pitch is 440 hertz for an "A", that is perhaps functional.
> In a musical octave, there are eleven steps (in western music, at
> least). A through G, with four flats (or sharps). In chess, there
> are six discrete movement patterns (Queen, King, kNight, Bishop, Rook,
> Pawn). That a queen moves on the diagonal is also functional. That
> an "A" resonates at 440 hertz is functional.
>
> > Moreover, even if one accepts your analogy, it IS the case that the
> > basic building blocks of music are not protected by copyright. One
> > cannot copyright individual notes, major or minor keys (or any of
> > the various "modes"), or individual chords within keys, because
> > doing so would inhibit composition. One can only copyright an
> > original combination of notes, chords, and keys.
>
> No argument here.
>
> > This is where the analogy breaks down. A combination of notes,
> > chords, and keys is no longer functional; whereas a combination
> > of chess moves remains functional.
>
> I agree with the first predicate, but cannot see how the second is
> supported by your discussion.

A combination of chess moves remains functional because the only purpose of the combination of moves is to try to win. The purpose is not to try to "perform" the moves for their own sake.

> > In order to compete in chess, one must be able to copy combinations
> > of moves (i.e., entire strategies), not just individual moves.
>
> And as any virtuoso musician will tell you, they copy many aspects
> of the masters in the development of their style, but their music
> is their own, when recorded, and protected by copyright.

That's because they're not copying entire works or large portions of works, but only individual building blocks. But in chess, even large portions of works may need to be copied in order to compete effectively.

> I know of no decision that holds that "competition" is an indicia
> of function, and thus disqualifies a work from protection under the
> copyright statutes. Have you a cite in mind??

In addition to Section 102(b), there are dozens of opinions holding that if it is necessary to copy a computer program in order to compete (i.e., in order to reverse engineer the program to learn its functional aspects), then it is a fair use.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Tue May 16 2000 - 22:42:08 GMT