Revisiting BHB v William Hill ?

[wit]

In Court 18 tomorrow (Wednesday) at the Royal Courts of Justice in The Strand, before Mr Justice Floyd, continues the case of Football DataCo Ltd v Stan James (Abingdon) Ltd & ors.

Football DataCo is owned by the Premier League and the Football League.

It seeks licence fees from bookies and others who publish lists of fixtures in those leagues and their Scottish counterparts.

A bit like the BHB sought to do in respect of lists of horses in races.

Except that Football DataCo takes it to the level of fixtures for one club – like listing out entries for one horse.

The BHB’s attempt foundered in the Courts.

As did Football DataCo’s around that same time.

But its back now trying another angle.

Be interesting to see if Football DataCo is more successful this time, and if so whether there is any blow-back for racing.

Fee amounts sought by Football DataCo here:

http://www.football-dataco.com/licences/fixtures.aspx

eg editorial use over the internet (as in a post on a site like this?) of some or all fixtures of "One club Scottish Football League – GBP 159.00 (excluding VAT)".

[Never Nearer]

So do you know what the final score was?

Interesting spot this Wit, and it’s surprisingly difficult to find out more via Google.

It appears as though there was a hearing in November and that a Danish company Enet Pulse Aps (http://www.enetpulse.com) was a co-defendant at that time.

It can be expensive speculating about legal proceedings, so does anyone have any details?

[wit]

Day 3 kicks-off tomorrow at 10.30, Court 18:

http://www.hmcourts-service.gov.uk/cms/ … ancery.htm

but I’m guessing the result won’t come until some time after the players have left the field.

rather than Google, might be better-off trying Yahoo, as it seems it was named along with Brittens Pools in an earlier iteration:

http://www.i-law.com/ilaw/doc/view.htm?id=239371

i’m nowhere near the case nor the Court, but my guess would be that Football DataCo is trying to reconcile the much-referenced (by it) favourable 1959 outcome for its predecessor operator against Littlewoods under then just English copyright law, as against its own 2004 disappointment in the ECJ under the database directive / EU-varied English law in the internet era.

since when (as i understand) bookies have been making payments to it but strictly on a voluntary basis and reserving their rights.

while fanzines without the resources for a legal fight have been seething like this:

http://www.bsad.org/0506/reports/fixtures_letter.html

possibly its now felt the legalities should be settled definitively.

i share your hope that there may be others on the forum in a position to confirm exactly what is going on in the case.

[wit]

ah, here’s a bit of background to these hearings:

http://www.bailii.org/cgi-bin/markup.cg … od=boolean

including:

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
"17…..Let me look first at what may happen at trial in March 2010.

The Fixture Lists subsistence issue will have a binary outcome, either rights subsist in the Fixture Lists or they do not.

Either way, once the issue is decided, other major issues will, as the Master rightly thought, fall away completely.

18. First, if the Fixture Lists issue is determined in the [defendants’] favour then the Brittens’ action and the Yahoo action will be dismissed and the only triable residue will be the Stan James Live Data issues i.e. [Football DataCo] would probably say that even if they had no rights in the Fixture Lists they still do in the Live Data .

There will of course be no need to determine Yahoo’s additional defence i.e. the defence of public interest as there will have been no infringement.

Alternatively, if the Fixtures Lists subsistence issue is determined in [Football DataCo’s] favour then there can be judgment in

favour in the Brittens’ action and Stan James ‘ actions, and the only triable residue will be the Yahoo defences of public interest.

There will be no need to determine the Live Data claim against Stan James because, as noted, Stan James will not contest that claim in this eventuality. "

<<<<<<<<<<<<<<<<<<<<<<<<<

So these hearings seem to address the main issue of having to pay or not for publishing simple lists of fixtures.

…and it looks like another trip to the ECJ is on the cards, at least according to Football DataCo:

=========

In 2005 the European Court of Justice decided the so-called "Fixtures’ Marketing" cases: Cases C-46/02, C-338/02 and C-444/02. I am going to summarise what they are about but not go into detail. They affect the Fixtures Lists issue.

Mr. Roberts submits that, having regard to these cases, we are concerned in that part of the litigation with charted legal territory.

He adds that because of the ECJ decision the claimants here are going to be facing an uphill struggle on their Fixture Lists issue.

The ECJ has already considered the subsistence of database rights in English football Fixture Lists in these cases where it effectively ruled that no database rights subsisted in the Fixture Lists because the investment of the second and third of the appellants involved today did not constitute the correct type of ‘investment’ required to give rise to this sui generis right.

Miss Lane [for Football DataCo] said that the claimants had found a factual way around the effect of these judgments and much more pertinently, she drew my attention to the Copyright Designs and Patents Act 1988 (As amended) and in particular to s.3A(2) thereof:

"(2) For the purposes of this Part a literary work consisting of a database is original if, and only if, by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation."

This, she stressed, is an entirely new area of law, and I think she may be right.

What she says in essence is that the Fixtures Marketing cases are by no means the end of the story; there is the copyright issue as well which has to be adjudicated.

This question of s.3A(2) will evidently be one of the claimants’ primary arenas of argument at trial in response to the defendants’ denial of the subsistence of copyright rights in the Fixtures Lists.

She said, rightly I think, that whatever may be said about the subsistence of database rights in the light of the European Court of Justice decision, there was here, new legal territory.

Thus, she added, there would almost certainly be a reference in this part of the case to the European Court of Justice and/or an appeal. I can well believe that.

============================

so, potential long haul ahead.

and if it goes the way ultimately of Football DataCo then, yes, possibly a revisit to the copyright model as a way of funding racing after the levy.

[Never Nearer]

Thanks for the legwork Wit. I always enjoy reading a good judgement: some nice dry humour in there.

It may not be immediately as interesting to this forum as the winner of the 4:45 at Ludlow but, as you imply, in the longer term this could turn out to be a ‘big deal’ for racing.

Developments awaited with interest.

[wit]

judgment now online:

http://www.bailii.org/ew/cases/EWHC/Ch/2010/841.html

==============
Conclusion

101. The Fixture Lists are protected by database copyright, but not by sui generis database right or any other copyright. I will hear counsel on the appropriate order in the light of this judgment.

==============

imo the judgment suggests no change for racing, at least not unless

a. something like a "Rod Street" factor results in the racing calendar for a given season becoming the intellectual creation of a Glenn Thompson figure (eg this season the Derby will be run at Bath on November 5 and will be contested by the following horses in training…..)

and

b. the BHA gains, at the expense of the courses, equivalent power to the FA / Football League to prescribe which horse will run against which others, in what race, where and when.

according to the judgment Glenn Thompson is the chap who determines (a) the dates on which matches in general will be played, (b) the matches which are to be played and (c) the dates of specific matches.

"15… Mr Glenn Thompson of Atos Origin IT Services UK Limited …… carries out two major tasks, which ultimately culminate in a first draft fixture list. These are called sequencing and pairing. Mr Thompson describes the work he does as a mixture of art and science. He says that the pairing grid which he produces represents his attempt to strike a fair and reasonable balance between the competing date and pairing requests of each club. "

Glenn Thompson told the Court:

"…..At the end of the day I think probably that fixture list is based on my knowledge of doing creating the fixtures and on the input I have put into it. If you were to give the fixture list to someone else, they would come up with a totally different solution. I think in that respect because of the solution I come up with, it is probably my work. If someone else did it, it will be totally different…."

the Court decided that this put enough of Glenn Thompson into the fixture list to make it his unique intellectual creation, and so give him/the leagues engaging him, database copyright in the lists.

as per para 101 quoted above, the judge wanted help as to where things go next in the case – anyone on the forum know and able to say how that turned out ?

[Never Nearer]

Thanks again Wit.

As I have said before, I’m not a lawyer (fortunately) but the salient phrase from the point of view of anyone trying to establish copyright on behalf of racing, or any other enterprise for that matter, is

There must be some ‘subjective’ contribution. A ‘sweat of the brow’ collection will not do.

To expand upon your examples to clarify my own understanding, if the final declarations for a race were chosen by a handicapper on the basis of providing the best spectacle or the most competitive contest from those horse which had been entered then that might attract a commercial right in runners and riders.

Similarly the fixture list process could be changed such that racecourses would be entitled to submit as many applications as they wished to stage fixtures, and those granted would be selected on the basis of achieving the best match based on a combination of golden rules and ‘nice to haves’.

One problem here is that these were the sort of considerations which were handed over to placate the OFT. Also, although you could protect the biggest meetings with fixed dates each season [to avoid running The Derby at Bath ] in much the same way that football fixtures avoid international weekends, in order to establish "subjective contribution" the rest of the fixture list would have to vary substantially from year to year, an arrangement that would cost racecourses themselves substantial revenue (variation in the number of fixtures awarded, different dates each year and so on).

Good news for punters, bad news for the racing authorities, and a handy "How To" guide for anyone thinking of creating a database with exploitable rights.

[wit]

this is the way the Weekly Law Reports have summarised the decision:

http://www.lawreports.co.uk/WLRD/2010/C … sPools.htm

seems somehow to make it sound vulnerable to appeal (and no, i have no monetary interest in the case being strung out or otherwise)….

[wit]

the official "pathfinder" judgment suggested to the ECJ just before Christmas is that there is no copyright in a list of football fixtures:

http://curia.europa.eu/juris/document/d … cid=830160

http://www.informationoverlord.co.uk/?p=479

the actual ECJ judgment likely in about six months, but this is a setback for Football Dataco.

if the Advocate General’s view is adopted by the ECJ (which usually is the case) it would reaffirm the outcome of William Hill v BHB.

[cormack15]

Wit –

What would be the legal position if TRF published racecard info – or results – or racing fixture lists? (without paying anybody of course!)

[Glenn]

Always great to read your posts wit.

Do you specialise in contract law by any chance? I have a question regarding my pension.

I entered into what I would consider to be a legally binding contract with a finacial services company based in Gibraltor. Basically I funded the scheme with one year’s income and was promised basically enough to fund 28 years in retirement in exchange (less their 40%+ fees, honestly the pensions industry is a scandal…….), providing the volatile Irish financial derivatives which my retiremnt fund was invested in performed up to expectations.

Anyway, long story short, now the time has come for me to retire they don’t want to pay up. They’re citing some catch-all (ie unfair) clause in their t&c’s, even though the specific clause in their t&c’s relating to the incident in question suggests that I cannot be denied.

Any suggestions on how to proceed?

[wit]

Hi Corm

Copyright fundamentally is about copying – if what you do is not "copying" then you are outside the ambit of copyright.

So what exactly were William Hill doing as regards pre-race information ?

From the ECJ judgment:

=============
16. The

database is accessible on the internet site operated jointly by BHB and Weatherbys Group Ltd. Some of its contents are also published each week in the BHB’s official journal. The contents of the database, or of certain parts of it, are also made available to Racing Pages Ltd, a company jointly controlled by Weatherbys Group Ltd and the Press Association, which then forwards data to its various subscribers, including some bookmakers, in the form of a Declarations Feed, the day before a race. Satellite Information Services Limited (SIS) is authorised by Racing Pages to transmit data to its own subscribers in the form of a raw data feed (RDF). The RDF includes a large amount of information, in particular, the names of the horses running in the races, the names of the jockeys, the saddle cloth numbers and the weight for each horse. Through the newspapers and the Ceefax and Teletext services, the names of the runners in a particular race are made available to the public during the course of the afternoon before the race.

17. William Hill, which is a subscriber to both the Declarations Feed and the RDF, is one of the leading providers of off-‘course bookmaking services in the United Kingdom, to both UK and international customers. It launched an on-line betting service on two internet sites. Those interested can use these sites to find out what horses are running in which races at which racecourses and what odds are offered by William Hill .

18. The information displayed on William Hill’s internet sites is obtained, first, from newspapers published the day before the race and, second, from the RDF supplied by SIS on the morning of the race.

19. According to the order for reference, the information displayed on William Hill’s internet sites represents a very small proportion of the total amount of data on the BHB database, given that it concerns only the following matters: the names of all the horses in the race, the date, time and/or name of the race and the name of the racecourse where the race will be held.

Also according to the order for reference, the horse races and the lists of runners are not arranged on William Hill’s internet sites in the same way as in the BHB database.
==============

http://www.bailii.org/cgi-bin/markup.cg … 20302.html

Copyright does not attach to information, just to expressions of information that have involved someone using some work or effort to make such expression their original work.

William Hill were taking information about who was to run in a race and putting together their own expression of that information, so were not copying from anyone.

But since the information by its nature could only come from one source (the BHB), was it protected under the EU database right that was intended to expand the scope of copyright protection to those who had made a substantial investment in creating a database?

The ECJ said it was not . William Hill were not tapping into or republishing the BHB database. They were just waiting for the end result – the official list of horses made public by the BHB at noon the day before the race – and then creating their own expression of the information on that list.

http://www.bailii.org/cgi-bin/markup.cg … 5/863.html

So if the ECJ in six months or so reaffirms the BHB finding in the Football Dataco context, the way would then seem very clear for anyone to be able to create their own expressions of information gleaned from published official lists of horses or football matches, without fear of thereby infringing copyright or the (copyright-extension) database right.

That doesn’t mean open-season: you still can’t copy anyone else’s expression of that information: you still have to be original in how you express the information.

But the shadow would then be lifted that – just because in its nature the information can only come from one source – you therefore have to pay that source in order to mention that information.

It would mean TRF would be able to do what William Hill were then doing. (Hills themselves seem since to have moved on to buying-in the RP’s expression of the information).

As regards post-race information, the basic question again is whether there is copying going on of someone else’s work, or whether it is your own original expression of information freely available to the public ?

Also, in each case – pre-race info and post-race info – you need to be sure that the way you come by the info does not subject you to contractual or other legal (eg obligation of confidentiality) restrictions as to what you do with that information.

But assuming your sources of pre-race and post-race info do not encumber your freedom to onward transmit it, there would seem no obstacle to TRF then publishing its own expressions of such info (TRF having got assignments of rights from the TRF individuals doing the actual work).

best regards

wit

[wit]

Hi Glenn

I’m not sufficiently au fait with Gib law but I would be inclined to go beyond Clause 9 in the T&Cs and look also at:

Clauses 12 and 14 of the T&Cs:

===============
12. Matters beyond our reasonable control

Without prejudice to our obligations contained within the various laws and regulations of the jurisdictions where we are licensed, we are not liable for any loss or damage that you may suffer because of any: act of God; power cut; trade or labour dispute, act, failure or omission of any government or authority; obstruction or failure of telecommunication services; or any other delay or failure caused by a third party or otherwise outside of our control. In such an event, we reserve the right to cancel or suspend our services without incurring any liability.

We are not liable for the failure of any equipment or software howsoever caused, wherever located or administered, or whether under our direct control or not, that may prevent the operation of the Services, impede the placing of offers for bets or the matching of bets, or prevent you from being able to contact us.

Please be aware that if you place a bet with the intention of subsequently placing a separate bet to reduce the liability incurred by the initial bet, there can never be a guarantee that the Services will be available at the point you wish to place the subsequent bet (this is the case regardless of whether or not the unavailability of the Services is due to a matter beyond our reasonable control).

We will not be liable for any failure to perform by a third party to our Agreement….

14. Limitation of liability
……
In no event will we, or any of our suppliers, accept any liability however arising for any losses you may incur as a result of using the Services.

Under no circumstances will our liability under this Agreement or for breach of contract, tort, equity or otherwise exceed your exposure limit as specified in your account.

Under no circumstances will we be liable for any indirect, special or consequential damages, loss of profits (direct or indirect) or the benefit of any bet arising from breach of contract, negligence, equitable duty (including for the avoidance of doubt in relation to any bet(s) or Market(s) voided by us) or other liability even if we had been advised of or known (or should have known) of the possibility of such damages or loss.

============================

plus Clauses 9, 19 and 20 of the Trust Deed:

=======================================
9 Placing Bets and Use of Betting Services

9.1 If a Customer makes use of the Betting Services (whether by placing an offer to bet or accepting a bet or receiving services or otherwise) the Trustee shall hold such amount of that Customer’s Share (the Allotted Amount) as the Company or, as applicable, the relevant Group Company, notifies it is necessary to cover the Customer’s exposure (whether to other Customers or to the Company or to any Group Company) arising from the use of the Betting Services….

…
9.3 The Trustee shall provide the Company and (if relevant) any Group Company with up-to-date details of each Customer’s Current Exposure and Available to Bet balance in order that the Company and (if relevant) any Group Company can:

(a) determine whether the Customer is entitled to use the Betting Services in accordance with Terms and Conditions; and

(b) make such details available to the Customer on the Website Facility or provide these details to the Customer through a telephone operator.

9.4 The Trustee shall maintain accurate records of each Beneficiary’s Share and of each Customer’s Current Exposure and Available to Bet balance at any given time which are capable of being produced promptly in writing.

9.5 Each Beneficiary acknowledges that the Trustee’s calculations of its Beneficiary’s Share and (in the case of Beneficiaries who are Customers) of each Customer’s Current Exposure and Available to Bet balance will be final and, in the absence of any manifest error, will not be subject to any enquiry or investigation.

……

19 Liability

19.1 The Trustee shall not be liable for any actions, claims, demands and proceedings brought or made against it or its delegates and all costs, damages, expenses or other liabilities of whatever nature in connection with this Deed or the Trust with the exception of claims and liabilities arising by reason of negligence, fraud or wilful default of the Trustee, its officers or employees.

19.2 The Trustee shall not be responsible for any misconduct on the part of any person appointed by it hereunder or be bound to supervise the proceedings or acts of any such persons.

……

20 Remuneration and Indemnity

….
20.2 Without prejudice to the foregoing, the Trustee shall be entitled to indemnify itself from and against all or any losses, liabilities, claims, proceedings, taxes, penalties, fines, costs and expenses incurred by the Trustee in relation to the trusts contained herein from the assets held in the Trust Fund ……
===============================

A lot will turn on the precise detail of how the state of affairs was able to occur.

If eg it was down to someone being allowed to play on credit, that could raise different issues than if eg it was a pure technological glitch.

[wit]

Glenn,

if it is the case that the poster "Paranoid" in the "Theory of what happened" thread over on big blue has postulated close to the mark, then the situation would likely be covered by T&Cs clause 12:

"…..We are not liable for the failure of any equipment or software howsoever caused, wherever located or administered, or whether under our direct control or not, that may prevent the operation of the Services….".

Paranoid’s postulate:

=================================
The amount of the lay bet was 2^31-1 pence (2 raised to the power of 31 minus 1).

This is the largest number that can represented by a signed 32 bit integer and it is no coincidence that this was the lay amount.

My guess as to what happened is that the customer was using their own software via either the API or the web interface. In either case there would be no sanity checks, by the customers software, before submitting bets.

On the customers side, their software has mixed and matched signed and unsigned 32 bit and 64 bit integers. When you do this you can start off with -1 and end up with 2^31-1 (2147483647) pence. The program has then submitted this as a Lay at 29.
On Betfairs side, the software, has received the bet, checked that the odds are okay and the amount is okay and then calculated whether the customer has the funds to cover the bet.

This calculation has multiplied 2147483647 by 28 and compared the result with the customers balance. Unfortunately for betfair they have used a 32 bit signed integer for the calculation and this has resulted in an overflow and so instead of the calculated exposure being £601,295,421.16 it has been £-0.28.

Since the customer had a positive balance they allowed the bet through.

By assigning and re-assigning between 32 bit and 64 bit signed an unsigned integers the sign bit (the first one) got dropped and the number changed from:
11111111111111111111111111111111 ( -1 in binary ) to
01111111111111111111111111111111 ( 2147483647 in binary )

The fix will have involved a simple check on the exposure calculation to ensure an overflow doesn’t occur.

=============================

best regards

wit

[Glenn]

Thanks for the replies wit. Would have preferred some encouragement wrt restoring the universal balance (or at least my big blue balance) but you can’t have everything.

One thing that has struck me about media comments on this issue is everyone rolling out the notion of ‘palpable error’, which I had thought was a defunkt concept since the 2005 Gambling Act. Do you have any general views on this? Has any betting outfit licensed in Britain been able to hide behind a palpable error rule since bets became binding contracts? Would they be able to?

[wit]

Glenn,

Best I know, the palp position has not moved on in terms of legal precedent since Darren’s enquiry three years ago:

https://theracingforum.co.uk/horse-r … 5&p=264807

and the texts on contract law in the wider world (joined by the bookies since section 335) continue to say:

"A fundamental mistake on the part of one party only, not actively caused or contributed to by any other party or his agent, as to the quality of the subject matter of the agreement does NOT invalidate the agreement, or otherwise give ground for relief in equity, even where the other party knows of the mistake, UNLESS in the circumstances he has misled the mistaken party, or his knowledge and failure to disabuse him amounts to equitable fraud, or there is a duty to speak breach of which may found an estoppel."

Everything tends to depend on exactly how each situation arises.

Change the postulated cause here to no software error but rather a fat-fingered / doolally punter allowed a GBP 600 million credit-line, and I’d put the legal strength with the pensioners.

If it is the case that there would be no kerfuffle here had the money been in the loser’s account, the matter would seem to turn on how the bets were made without money in the account; who (if anyone) created that situation; and whether they did so in a way for which they should be legally responsible through their pocket, even unto bankruptcy (in the case of an impecunious loser).

In the wider commercial world there are many exchanges / clearing systems which, while most of the time operating to assure credit-worthiness and payment, do not stretch to 100 per cent absolute irrevocable guarantees of either.

BF’s procedures for sure are set up to minimise to a high degree the risk of non-payment, but has it ever taken that final step to explicitly and unconditionally guarantee payment by one client to another in all cases without exception?

I can’t immediately see that it has in its T&Cs – rather, when push comes to shove and PR is out the window, there are a lot of get-outs that point against any absolute and unconditional guarantee.

best regards

wit

[Drone]

The Paranoid Postulate appears pretty convincing to me: it must be too great a coincidence that the lay amount was the ‘maximum’ 2^31 -1

If this was indeed the scenario, then surely Betfair must confirm it, as it would IMO be an unequivocal ‘palpable error’

Or if it wasn’t the case, then come up with an equally convincing alternative, pronto

[Author]

Posts