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An argument over golf scores normally takes place in a clubhouse bar, not a federal appeals court. Of course, most scoring disputes don’t involve antitrust and copyright law or the First Amendment’s guarantee of a free press. This one does, which is why Augusta, Ga.-based newspaper publisher Morris Communications Corp. and PGA Tour Inc. are set to tee off before the 11th U.S. Circuit Court of Appeals in Atlanta on Jan. 14. At issue is Morris’ claim that the tour violated antitrust laws by making newspapers agree to delay publishing real-time scores obtained through the tour’s press center. According to Morris’ briefs, “For years, PGA provided the media with unfettered access to these golf scores, the same golf scores simultaneously published without restriction to over one-hundred competitors, thousands of spectators, and to hundreds of thousands of television viewers.” In the mid-1990s, Morris began publishing the scores in real time on its Internet sites, but the PGA also became interested in the Internet market. According to the Morris brief, the PGA won’t give news organizations access to the press tent unless they agree not to publish scores in competition with the PGA’s Web site, www.pgatour.com. The PGA has “usurped the market,” the Morris brief alleges. “It is now the only publisher of real-time golf scores on the Internet.” Before the rules at issue in the suit were instituted, Morris sold real-time scores to CNN/SI for about $430,000 in 1999. Under the current rules, Morris’ deal with CNN/SI was worth $150,000, according to court records. At the same time, the tour’s revenue from a similar deal with USA TODAY has grown, records show. A federal judge in 2002 threw out Morris’ claims, concluding that the publisher “free-rides on the PGA Tour’s efforts in compiling the scores.” Judge Harvey E. Schlesinger of the U.S. District Court for the Middle District of Florida added that the tour had a right to protect the scores — compiled in a process involving many volunteer reporters around the golf course and millions of dollars in technology — in the same way companies were entitled to protect trade secrets in Morris Communications Corp. v. PGA Tour. In its appeals briefs, Morris has argued that it does not free-ride on the tour’s core business of promoting golf tournaments and that the tour does not have any intellectual property right to golf scores. Schlesinger’s comparison to trade secrets was “astonishing,” wrote Morris’ attorney George D. Gabel Jr. of Holland & Knight, because the issue of trade secrets never came up during the litigation. MEDIA GROUPS RALLY But the stakes are higher than the money anyone can make publishing real-time golf scores, Gabel added. “No legal principle permits PGA to encourage news organizations to attend its events to reap media publicity, but then muzzle those news organizations that dare to publish news in competition with PGA,” Gabel wrote. Indeed, 13 media groups — including the Newspaper Association of America, Cox Enterprises Inc., Associated Press sports editors and The New York Times — submitted a friend-of-the-court brief supporting Morris. “The logical extension of the district court’s decision is that every person who hosts an event acquires a ‘property right’ in everything that occurs at that event,” wrote Jonathan D. Hart of Dow, Lohnes & Albertson for the media groups. “The district court’s decision would permit PGA Tour to place a restriction on tickets prohibiting spectators from revealing golf scores to anyone outside the tournament grounds until PGA Tour decides to put the scores on its website,” Hart added. In their brief, lawyers for PGA Tour dismissed as irrelevant the First Amendment and copyright issues brought up by Morris and the news groups. “Rather, the challenged regulation simply prohibits credentialed media organizations from selling the product of PGA Tour’s scoring system to non-credentialed Internet website publishers without PGA Tour’s consent,” wrote James M. Riley of Rogers Towers in Jacksonville, Fla. GOLF IN THE COURTS This is at least the third golf-related case to end up in the federal appeals system in recent years. In PGA Tour v. Martin, the U.S. Supreme Court ruled that the Americans with Disabilities Act required the tour to allow disabled golfer Casey Martin to ride in a golf cart between shots during tournaments. An 11th Circuit panel in November heard arguments in a free speech case prompted by the opposition of women’s groups to the all-male membership of Augusta National Golf Club. At issue are local ordinances under which Augusta authorities moved a protest planned for the club’s entrance a half-mile down the street during the 2003 Masters Tournament in Burk v. Richmond County.

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