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With all of the pressure to create content cheaply and quickly these days, it’s not unheard of for a Web site to publish information copied from a competitor. Some call it “borrowing” content, and others call it stealing, and that’s what is at stake in a suit filed last May by Pollstar, a Fresno, Calif.-based online database of concert tour information, against a competing concert-listings site. Last week, a federal judge cleared the way for the lawsuit to proceed to trial, building momentum around a case that’s likely to be watched closely by content-based e-businesses. The Pollstar suit claims that Gigmania, a concert-information site, copied and published Pollstar’s event listings without permission. To support the claim, Pollstar’s lawyers invented and published bogus listings on the site, such as dates for classes at the Lecter Cooking Academy in Harris, Va. (Hannibal Lecter is the fictional cannibal in the novel and film “The Silence of the Lamb”). When the identical false listings turned up on Gigmania, Pollstar’s attorneys had the proof they needed to file suit. Faced with the lawsuit, attorneys for Brooklyn, N.Y.-based Gigmania countered it is legal to “borrow” listings that Pollstar has gathered because of a Supreme Court ruling that holds that facts — including listings in the Yellow Pages — cannot be copyrighted. The reality may not be as clear-cut as Gigmania’s attorneys would like people to believe. A decision by a Georgia state court judge last week seems to show that the legal trend supports Pollstar’s position. The judge ruled that the media company Morris Communications, which owns newspapers in Florida and Georgia, cannot take live tournament scores from the Professional Golf Association’s Web site and syndicate them to other media outlets for profit. That, said district judge Harvey Schlesinger, would unfairly capitalize on the PGA’s “mechanism for simultaneously gathering and generating the scoring information.” For now, a preliminary injunction halts Morris Communications from continuing the practice. While Pollstar’s attorneys don’t argue that the site’s concert listings are facts, they are banking on an exception to the Supreme Court ruling that allows time-sensitive, factual information such as newspaper articles or TV news programs to be copyrighted. “There’s an exception for ‘hot news,’ and we think we’re covered,” says Pollstar lawyer Steven E. Shapiro of Mitchell Silberberg & Knupp of Los Angeles. Gigmania attorney Mitchell Zimmerman of Fenwick & West in Palo Alto, Calif., counters that concert and event listings are not time-sensitive data and, therefore, should not be copyrighted, because the information is known weeks in advance. If Pollstar prevails at trial next year, it will prevent Web sites from gaining on their competition by free riding on their rivals’ content. The case is likely to be closely watched, regardless of the outcome. “These courts are protecting the party that can best lay claim to data that comes with the added value of immediacy,” says Michael Geist, an Internet legal expert at the University of Ottawa Law School who monitors developments in cyber-jurisprudence. “Real-time data is the guts of a lot of Web sites, and [currently] it isn’t protected, [so] the sites will lose a key competitive edge.” Copyright (c) 2000 The Industry Standard

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