Genius Sports Technologies Ltd (previously known as Genius Sports Ltd) v Soft Construct (Malta) Ltd (a company organised and existing under Maltese law)

JurisdictionEngland & Wales
JudgeMr Justice Marcus Smith
Judgment Date01 December 2021
Neutral Citation[2021] EWHC 3200 (Ch)
Docket NumberClaim No: IL-2020-00040
CourtChancery Division

[2021] EWHC 3200 (Ch)

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

INTELLECTUAL PROPERTY LIST (ChD)

Royal Courts of Justice

7 Rolls Building, Fetter Lane

London, EC4A 1NL

Before:

THE HONOURABLE Mr Justice Marcus Smith

Claim No: IL-2020-00040

Between:
(1) Genius Sports Technologies Limited (previously known as Genius Sports Limited)
(2) Betgenius Limited
(3) Genius Sports Services Limited
(4) Genius Sports Anz Pty Limited (a company organised and existing under Australian law)
(5) Genius Sports Media Inc (a company organised and existing under the law of Delaware)
(6) Genius Sports Eood (a company organised and existing under Bulgarian law)
(7) Genius Sports Services Eesti Ou (a company organised and existing under Estonian law)
(8) Genius Sports Services Colombia Sas (a company organised and existing under Columbian law)
(9) Genius Sports Network Aps (a company organised and existing under Danish law)
(10) Genius Sports Danmark Aps (a company organised and existing under Danish law)
(11) Data Project SRL (a company organised and existing under Italian law)
(12) Genius Sports LT (a company organised and existing under Lithuanian law)
(13) Genius Sports Asia Pte Limited (a company organised and existing under Singaporean law)
(14) Genius Sports Ch SARL (a company organised and existing under Swiss law)
(15) Genius Sports Group Limited
Claimants
and
(1) Soft Construct (Malta) Limited (a company organised and existing under Maltese law)
(2) Royal Panda Limited (a company organised and existing under Maltese law)
(3) Vivaro Limited (a company organised and existing under Maltese law)
(4) Soft Construct CJSC (a company organised and existing under Armenian law)
(5) Soft Construct Ukraine LLC (a company organised and existing under Ukrainian law)
(6) Soft Construct Limited (a company organised and existing under the law of the Isle of Man)
Defendants

Mr Tom de la Mare, QC and Ms Jessie Bowhill (instructed by Fieldfisher LLP) appeared for the Claimants

Mr Daniel Jowell, QC, Mr Philip Roberts, QC, Ms Alaina Newnes and Ms Jennifer McLeod (instructed by Reynolds Porter Chamberlain LLP) appeared for the Defendants

Hearing date: 23 November 2021

Approved Judgment

Mr Justice Marcus Smith

CONTENTS

A.

THE NATURE OF THE CLAIMANTS' CLAIM

§1

B.

THE PROPER PARTIES TO THE CLAIM AND THE APPLICATION

§7

C.

DATABASE RIGHTS SUBSISTING IN THE DATABASE

§16

(1)

The law “pre-Brexit”

§16

(2)

The law “post-Brexit”

§23

(3)

Transition

§25

(4)

Postscript: database entires, not databases

§27

D.

JOINDER AND CPR PART 19

§29

(1)

The general rule

§29

(2)

Representative parties

§37

(a)

CPR 19.6

§37

(b)

Lloyd v. Google

§38

(c)

Discretion and court control of the representative process

§41

(d)

The inter-relationship between the “same interest” test and discretionary factors

§43

E.

THE PRESENT APPLICATION

§45

(1)

The nature of the relationship between the Claimants and the Interested Counterparties

§45

(2)

Inappropriateness of the Claimants' approach

§49

(3)

The way forward

§55

(4)

Disposition

§58

Mr Justice Marcus Smith

A. THE NATURE OF THE CLAIMANTS' CLAIM

1

. The Claimants – who I will refer to as such or collectively as Genius Sports 1 – carry on business as the supplier of sports data services and technology and sports betting services and technology. Genius Sports gathers and processes live and non-live sports data in a number of sports – including, relevantly, basketball, volleyball and football – in certain databases. These proceedings concern:

(1) Live basketball data from leagues which are members of the International Basketball Federation ( FIBA).

(2) Live football data from leagues which are members of regional associations including the Union of European Football Associations ( UEFA), the South American Football Confederation ( CONMEBOL), Federation Internationale de Football ( FIFA), the FA Premier League Limited ( FAPL), the Football League Limited ( FLL) and the Scottish PFL Limited ( SPFL).

(3) Live volleyball data from leagues which are members of the International Volleyball Federation ( FIVB).

2

. As regards this data, paragraph 3 of the Amended Particulars of Claim pleads as follows:

“The aforesaid data is arranged in a systematic or methodical way, and is individually accessible by electronic or other means such that the database is a “database” within the meaning of Article 1(2) of the Database Directive (Directive 96/9/EC) (the Directive) and Regulation 6 of the Copyright and Rights in Databases Regulations 1997 (SI 1997/3032) (the Regulations). It is the Claimants' primary position that the aforesaid database is a single database, alternatively there are separate and individual databases comprising the data for each sport, each of which contain data which is arranged in a systematic or methodical way and which is individually accessible by electronic or other means. For convenience, the aforesaid database or databases are referred to hereinafter as the Database. Many sports leagues have appointed one of the Claimants as their official data partner.”

3

. Genius Sports has entered into a significant number of Data Rights Agreements – in excess of 200 – governing the use and ownership of the data entered into the Database. Paragraph 28 of the Amended Particulars of Claim pleads as follows:

“The Claimants have each entered into [Data Rights Agreements] with numerous leagues, including basketball leagues which are members of FIBA (the Basketball Leagues), football leagues which are members of the UEFA, CONMEBOL, FIFA and FAPL, FLL and the SPFL (through Football Dataco Limited) (the Football Leagues), and volleyball leagues which are members of the FIVB (the Volleyball Leagues). Pursuant to the Data Rights Agreements, the Claimants have obtained, collated, checked and entered into the Database, data relating to basketball, football and volleyball fixtures (as the case may be) for those leagues and continue to do so. Data so obtained, collated, checked and entered is and has been distributed to the leagues and Genius Sports' customers for their respective purposes…”

4

. I shall refer to the parties with whom Genius Sports contracts to form the Data Rights Agreements as the Counterparties and the leagues to which the Data Rights Agreements relate as the Leagues.

5

. It is necessary to explain in a little greater detail the diversity that differentiates the various Data Rights Agreements. They are in no sense standard form agreements. This diversity may be described under a number of heads:

(1) Geographic diversity. The Leagues to which the Data Rights Agreements relate are geographically diverse. The portfolio is, essentially, worldwide. For reasons that I shall come to, it is necessary to differentiate between Leagues located in the United Kingdom, Leagues located in the European Economic Area ( EEA) and Leagues located outside the United Kingdom and/or the EEA. 2 The geographic diversity of the Counterparties – in terms of their seat or domicile or habitual residence – reflects, but does not necessarily mirror, this geographic diversity of Leagues.

(2) Diversity of sport. As has been described, there are three sports here in issue – basketball, football and volleyball. The relevant Leagues can be classified into Basketball Leagues, Football Leagues and Volleyball Leagues. The difference matters because each sport appears to be organised differently in terms of how data relating to that sport is collected.

(3) Diversity of counterparty. Although paragraph 28 of the Amended Particulars of Claim (quoted above) suggests that the Counterparties are all the persons owning and/or operating Leagues, that is not strictly accurate. Although many of the Data Rights Agreements are indeed with Leagues as Counterparty (I shall refer to these as Sports Counterparties), some are with data collection bodies who are not Leagues (I shall refer to these as Data Counterparties).

(4) Diversity of form and substance of Data Rights Agreements. As I have noted, these are not standard form agreements. The detail and length and legal sophistication of the Data Rights Agreements varies significantly, as do the rights that are accorded to Genius Sports under those agreements. The Data Rights Agreements are unsurprisingly confidential, but (suitably anonymised and redacted) reference can safely be made to their terms:

(a) Agreement with Counterparty 1. This is an agreement dated November 2017 (i.e., prior to the United Kingdom's withdrawal from the European Union) between Genius Sports and a Sports Counterparty outside the EEA. The agreement:

(i) Confers a license in the following terms on Genius Sports:

“[Counterparty 1] hereby grants to [Genius Sports] the exclusive, worldwide, royalty free right to use, copy, store, distribute, publish, adapt, supply, sub-licence and/or exploit all data and statistics (including live

scoring data and historical scoring data) collected using FIBA LiveStats software ( Official Data).”

This agreement relates to a Basketball League (the reference to FIBA makes this clear), and it is clear that Genius Sports is being given an exclusive licence over the Official Data as opposed to ownership of the data.

(ii) This is made clear by a later clause, which provides that “[a]ll intellectual property rights in…the Official Data belongs to [Counterparty 1].

(iii) The...

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