Dataco v sportradar betting
While Sportradar's lawsuit against rival Genius Sports carries DataCo's (FDC) leagues for sports betting purposes, Sportradar said in a. Sportradar and Genius are competitors in the supply of sports data and sports betting services to bookmakers, including live data about football. (Football Dataco Ltd and others v Stan James plc and others; and Football Sportradar GmbH provided a service to the betting industry (in. REINVESTING DIVIDENDS IN A TAXABLE ACCOUNT FORMULA
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Sportradar's competition claim in the CAT argues that the exclusive agreement between FDC and Genius is unlawful and void as it infringes competition laws, and also that FDC has abused its dominant position. This was on the basis that, as well as gathering data from live televised broadcasts, Sportradar operates a network of scouts who attend matches 'surreptitiously' to collect data and transmit it to Sportradar for its commercial use. These claims are now progressing through the High Court against Sportradar and the six scouts on a representative basis in relation to all scouts conducting these activities.
Confidential information and trade secrets FDC and Genius argue that the live match data is information that has substantial commercial value, because of the right to collect that data from inside the clubs' stadia and the advantages that brings, over obtaining such data from sources such as televised coverage. Not all matches are televised, and obtaining the data in this way inevitably introduces elements of delay when, for bookmakers, being able to obtain accurate and comprehensive data, quickly, is crucial.
As Sportradar is aware of Genius' exclusive rights e. Comment This latest set of claims in a series of disputes relating to rights in sports data is one to monitor, alongside the related competition claim in the CAT brought by Sportradar. It follows a decision last year relating to rights in raceday data discussed briefly here in our IP Annual Review , where the Court of Appeal rejected a misuse of confidential information claim, whilst upholding a claim of unlawful means conspiracy.
After that, it is useful to consider their interrelationship. However, this is unconvincing for anyone familiar with the international football scene. English and also Scottish league events draw widespread interest outside the UK within a broad community of football enthusiasts and those interested in betting.
Thus audiences overlap to a degree for such events, with a substantial portion of the audience coming from outside the borders of the UK. Sportradar runs an Internet-based business for the provision of information services. This business is international, transcending purposely the national boundaries of both its own places of establishment; Germany and Switzerland.
The chosen modus operandi for running the information service through an Internet website suggests the same international or, rather, global tenet. Consequently, the choice of English language for an international audience is understandable and its inherent value in showing intent to target UK audience is less convincing. There is arguably nothing wrong with using the language or the characteristics of the relevant activity as markers to indicate the intention to target a certain geographical area in general.
However, the case clearly highlights how the strength of such criteria is dependent on the particulars of a given case. The two remaining factors are more intriguing in the current case and may well have a bearing on showing the intent of targeting audiences in a certain country or countries. Further, it could be relevant in this respect if the remuneration fixed by Sportradar, as consideration for the grant of access, took into account the extent of the activities which those companies had in the UK market and the prospects of its website betradar.
The first criterion is again problematic in many aspects. Accordingly, was it not the companies that were the actual potential target of Sportradar and not the UK end users of the information? Did the betting companies provide betting services exclusively or predominantly to the UK audience? The intentions to target a specific audience by the betting companies may differ from the intentions of Sportradar.
This may have been recognised in the latter criterion of the Court, the possible fixing of consideration based on UK end users, if the sum charged from betting offices is based on their customer base. What if these betting offices also have non-UK customers who are charged on the same basis? Of course, these are all matters of adducing the relevant evidence to the relevant circumstances. To turn the tables for a while, it may well serve the interests of the respondents to show that instead of intending to target persons in the UK, they were rather seeking to attract a global customer base, which may consist of betting companies et cetera having their own international audience.
Further, as a consequence of this, Sportradar may have chosen to use English exactly to not target any individual country like the UK alone, and the choice for the provision of UK football abreast with possible other non-UK football information data stemmed from its intent to reach a wider, even global audience. E contrario, the absence of such circumstances may well allude to targeting, but it is suggested that it is requisite to put even that in a reasonable context.
The criteria pronounced by the CJEU would also arguably benefit from clarification as to how they should operate together in practice. For instance, is the existence of one of the criteria mentioned in the list sufficient to prove that there was an intention to target persons in the UK? If not, how about if some points provide evidence on behalf of the targeting while others militate against it?
It remains to be seen how the internal logic of the list of criteria given is to be properly applied. Not surprisingly, the Court sagely inserted the standard clause to the ruling that it is for the national court to assess whether there is evidence disclosing an intention to target the members of the public in the UK Member State B.
Two final points deserve attention. First, as the numerous references to parallel case-law of the CJEU indicate  , the problem of determining jurisdiction for matters involving acts performed on the Internet is a recurring problem in several branches of law, not only those relating to intellectual property issues.
One of the reasons for numerous references is the fact that formerly e. Rather, these operations are as a rule automated and the relevant server does this, the natural or juristic person offering the service merely arranges or outsources the provision of such a technological system which is then in charge of these tasks. Thanks to the introduction and wide adoption of cloud computing and cloud services,  where computing resources are delivered as a service over a network like the Internet, it is difficult or virtually impossible to establish the physical location of the hardware configuration owing to the fact that it changes, if necessary, at short notice, without even an information service provider, in charge of the technical implementation, being all the time aware of the changes or the actual location of the servers.
In short, this shows that, due to the development in underlying technology, the location of the hardware and software is often not a reliable criterion for determining the location of an act even partly dependent on uploading or keeping the server downloaded with relevant data available. In respect of making data available to the public, or the concomitant reutilisation in the database context, to rely on acts of downloading by the users, makes little sense either.
They can be scattered around the globe in a manner inconsistent with the initial plans or intentions of the information provided to target a specific audience and rather, may be a consequence of circumstances not necessarily in their control.
Yet, some potential audiences could have received particular attention to lure customers from that group. It is useful to bear in mind that the German company actually running the information service never sought to avoid the litigation and perhaps the resultant liability. Instead, it instituted proceedings in its own forum domicilii after learning about the UK proceedings.
Consequently, the choice of appropriate forum on Internet related cases has consistently been one pregnant with different policy considerations and related issues, both in domestic and international disputes. However, the Directive did not introduce any rules to establish the location of possible infringement.
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