By Simon Brandon-Lai
In January, a British man attending a match at the Australian Open tennis tournament was arrested for sending contemporaneous match information to a betting agency using a device concealed in his clothing. Although since cleared, he was accused of “courtsiding” — exploiting the short time lapse between real time events and the television broadcast to place bets before odds can be changed. While the nefarious use of contemporaneous match information for gambling purposes is a concern, the broader issue remains: Who owns contemporaneous sports data? An appeal heard in the High Court of Delhi, New Delhi, India last year provides some interesting insights.
As the judge hearing the appeal, Justice S. Ravindra Bhat noted, the case had a “chequered history”: In an earlier decision, Star India Private Limited (Star India: plaintiff) was granted a limited interim injunction to prevent three defendants from disseminating contemporaneous match information (e.g., minute-by-minute score updates) to paying customers. The defendants were Akuate Internet Service Private Ltd., OnMobile Global Ltd., and Idea Cellular Ltd., none of who had obtained a license from the Board of Cricket Control in India (BCCI). They appealed against the granting of the injunction.
The BCCI is the organizer and promoter of cricket events in India, whose main source of revenue is through monetizing content generated by cricket matches (e.g., sponsorships, commercial advertisements, etc.). To this end, it grants exclusive rights to disseminate information pertaining to cricket matches, including the mobile distribution rights assigned to Star India. The defendants charged customers for information about matches covered by Star India’s rights (e.g., live scorecards, match updates, score alerts) disseminated through Short Messaging Service (SMS). Accordingly, the plaintiff filed three suits against the defendants, alleging unfair competition and unjust commercial enrichment. The BCCI leant their support to the plaintiff, claiming that it owned exclusive rights to any content generated through the cricket matches that it organized and promoted.
In their appeal, the defendants argued that the information in question amounted to facts, over which nobody can claim a monopoly; to do so, they claimed, would violate their “freedom of speech”. The judge agreed that no Indian statute creates a property right in facts such as scores or other happening on the field, and that the [Indian] Copyright Act states, “Except under the provisions of the Act, there cannot be a copyright under common law.” The judge also ruled that non-statutory common law rights based upon unfair competition or unjust commercial enrichment were unenforceable.
Most interesting to an American sports law audience was the consideration of the “hot news” doctrine from International News Service vs. Associated Press, 248 U.S. 215, 39 S.Ct. 68 (1918) (INS) in the case. The plaintiffs proposed that only the party who fairly pays the price should have beneficial use of the property, and in support of this, they referred to three other US decisions in which injunctions were granted [Pittsburgh Athletic Co. et. al v. KQV Broadcasting Co., 24 F. Supp. 490 (1938); Twentieth Century Sporting Club Inc. and Ors vs. Transradio Press Service Inc. and Anr., 300 N.Y.S. 159 (1937)].
Despite the decisions in those cases, the judge ruled here that “hot news” applies only when the defendant can be shown to be in direct competition with the plaintiff in their primary business activity. This judgment was based on the observations made in another US case, National Basketball Association v. Motorola Inc., 105 F.3d 841 (2nd Cir. 1997) (NBA). Justice Bhat quoted at length from the NBA decision in explaining his decision:
[The NBA’s] claim compresses and confuses three different informational products. The first product is generating the information by playing the games; the second product is transmitting live, full descriptions of those games; and the third product is collecting and retransmitting strictly factual information about the games. The first and second products are the NBA’s primary business… The collection and retransmission of strictly factual material about the games is a different product… In our view, the NBA has failed to show any competitive effect whatsoever from SportsTrax on the first and second products and a lack of any free-riding by SportsTrax on the third.
As neither Star India nor BCCI could consider their primaryengagement to be the dissemination of match information through SMS, it was decided that the plaintiff had failed to demonstrate proprietary rights over the information in question.On these facts, the court ruled that, on all counts, Star India’s claim for a limited interim injunction against the defendants could not be granted.
Contemporaneous sports data represent an extremely valuable commodity that sports leagues, governing bodies, and event organizers will fight to control. Although it is unlikely that subsequent US cases will rely on this decision from the Indian courts, the implications for establishing so-called “rights” or ownership of real-time sports data could be far reaching. At the very least, the application of INS and NBA in the present context demonstrates the ways in which claims can be formulated around facets of freedom of speech, “hot news” and quasi-property rights. Furthermore, the incident at the Australian Open serves as a reminder that the ongoing contestation of property rights is truly global in nature, reflected in the intersection of international rulings in Star India.
Broader implications also exist for the way in which the general public is able to consume sports. The decision in Star India has ensured that contemporaneous cricket match information will continue to be available through an infinite number of sources online and through SMS, for the time being at least. However, it remains to be seen how similar cases will arise and be resolved in the US. If official rights-holders do somehow become the sole source of contemporaneous match information, a Pandora’s box could be opened, whereby every imaginable avenue for disseminating information (e.g., personal SMS, Twitter, etc.) will come under legal scrutiny.
Simon Brandon-Lai is a Ph.D. student at Florida State University.
