Re: chess moves

On Tue, 16 May 2000, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> 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.

   It has been a long thread, and this post makes some excellent points (which you had not made before). I note that you have abandoned the "competition" argument that you previously made.

> 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.

   Excellent summary.

> 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?
 

   This is the best argument against protection, IMO. That the subject matter does not fall within one of the enumerated classes of the statute.

> 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.

   Here is perhaps where we agree to disagree. Music, like chess, often takes on a predictable path. We can anticipate where a melody is going, even predicting the next note in the melody, before hearing it. Bach is very much like that. If music is totally predictable, it is boring. You usually know where a Bach melody is going, but occasionally the music will "turn" in an unpredictable fashion, and that keeps the music interesting. Books on music theory discuss this in terms of what makes a "good" composition. A top quality chess match has an analog. The earliest moves are most predictable, and could be argued to be "functional". (Kings pawn to Kings Pawn 4 as an opening move, for example, there are only 20 possible opening moves that can be made). It is the unpredictable and different move, from a common opening, that makes the chess game unique.

   As to protecting the way each piece moves, we agree -- not protectable. As to an entire game, recorded in the notation of chess, I guess we disagree. A collection of games, recorded and published in a book, perhaps with commentary, is likely protectable as a literary work.

   My issue with your former analysis was one of assuming that if the predicate of competition was proved, then the work was functional and therefor not subject to copyright. I know of no treatise that makes this connection, and have seen no case law that so holds.

   This has been a long thread, but has been some excellent banter, IMO, and I always respect your views, even if I disagree with them.

Tom Workman

> > > 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.

   I disagree. Style, in my mind, is the interpretive artistry that is applied to a work. To be applied, the medium must permit deviations that are made from the manner in which others might play or perform. The game of chess may be too rigid to permit style to be applied. If applied, I think most would believe the result is protectable as an interpretation that is unique, and has met the threshold of creativity required for copyright. Style may be a riff, a trill, added "grace" notes, or practically a whole new composition (as is often the case in a Jazz performance). A good vocalist can apply "color", register of voice, volume, tempo, and rubato (a stretching of the tempo selectively), as well as accents on sylables of the libretto. In addition, great singers modify the vowels of the work they perform, to make the sound project, and to "phonate". These style matters are what makes the performance of a work unique, and subject to protection under copyright. Great musical works with a vocal component were written to facilitate the stylistic nuances of the time. Translations do not permit many of these, which is why an English performance of an Italian opera is not as satisfying to listen to as an Italian performance of the same work.

   The human voice is perhaps the most flexible of the performance instruments. Yet even the piano, which has discrete notes which can be played loud or soft, and three pedals to sustain or terminate a sound, can be played with exceptional "style" -- performances on the piano are clearly protected by copyright.

> > > 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.

   I agree with your predicates, but cannot understand how you believe that competition implies function.

> > 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.

   Agreed, but fair use does not go to the issue of whether a work is subject to copyright, but rather whether a particular use is infringing. I would agree with you that if a particular chess game was properly protected (protectable) by copyright, a Court would examine the alleged infringement and consider a fair use defense, if and when raised. I would not want to take the plaintiff's case on a suit for infringement, unless I was paid for my hourly services in advance. Such a defense would only be considered once the Court determined that the original game had been properly registered with the Library of Congress.

Tom Workman
Law Offices of Thomas Workman
41 Harrison Street
Taunton, MA 02780
<tworkman[_at_]erols.com> Received on Wed May 17 2000 - 22:46:19 GMT