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The PGA Tour can keep Morris Communications and other media companies from selling real-time golf scores online, the 11th U.S. Circuit Court of Appeals has found. In an opinion released Wednesday, the court upheld a 2002 ruling by Judge Harvey E. Schlesinger, of the U.S. District Court for the Middle District of Florida, which granted summary judgment to the PGA in Morris’ Sherman Act complaint. Schlesinger held that the PGA has a legitimate business interest in keeping media companies from disseminating tournament scores online as they happen. Morris Communications Corp. v. PGA Tour Inc., Nos. 03-10226 and 03-11502 (11th Cir. March 31, 2004). Each side accused the other of seeking to control access to tour scores for commercial purposes. But Judge Joel F. Dubina, writing for a unanimous panel that included Chief Judge J.L. Edmondson and Senior Judge Emmett Ripley Cox, agreed with the lower court that the PGA has the right to control those scores. “PGA has accommodated Morris at every step along the way, has agreed to sell its product to Morris, and has acted appropriately to protect its economic interests and investments,” Dubina wrote. “Yet Morris demands that it be given access to the product of PGA’s proprietary RTSS [Real Time Scoring System], without compensating PGA, so that Morris can sell that product to others for a fee. “That is a classic example of ‘free riding,’” he wrote. WHY PGA CONTROLS THE SCORES Atlanta, Ga.-based Morris had complained that the PGA’s On-Line Service Regulations make it the only entity that can sell real-time golf scores. Those regulations include a provision that media organizations wait to post the scores the PGA compiles until the PGA posts them on its Web site, or until 30 minutes have passed since the shot-whichever comes first. Another condition bars companies from selling the scoring information to third parties who do not have credentials — unless they buy a license to do so from the PGA. The PGA was violating the Sherman Act, Morris contended, by monopolizing the market for compiled real-time golf scores and the sale of those scores. The company also accused the PGA of refusing to make a deal with Morris-another violation of the Sherman Act. But the court’s finding mirrors the arguments of Skadden, Arps, Slate, Meagher & Flom partner Jeffrey A. Mishkin, who represented the PGA. His client wasn’t trying to control information, he said. It was simply trying to keep Morris from taking information the PGA spends a lot of money to compile and disseminate for free to the media, and then turning around and selling it to third parties without the PGA’s permission. “We give them the information,” he said. “That’s news reporting, and that’s valid. We want that. “The PGA does not wish to conduct its events in secret,” he said, laughing. But Mishkin said it’s unfair of Morris to claim monopoly because the PGA won’t allow it to sell the PGA’s product. “It would be like going to Apple and saying, ‘Please give us some computers for free so we can sell them in competition with you,’” he said. In the opinion, Dubina agreed. “If Morris wants to sell PGA’s product, it must first purchase it from PGA,” he wrote. Morris’ lawyer George D. Gabel Jr. of Holland & Knight in Jacksonville, Fla., said he didn’t agree that the PGA had a proprietary interest in the scores. “They’re just facts. You can’t own a fact.” Gabel said he was sure his client would want a rehearing and if necessary certiorari to the U.S. Supreme Court. HOW PGA KEEPS UP The fight is over PGA’s use of its “Real Time Scoring System,” which it uses to monitor play simultaneously on every hole, and to disseminate scores to the media in real time. During a tournament, the PGA uses volunteers to follow each group of golfers and keep track of scores. At the end of each hole, they pass the scores to another set of volunteers stationed on every green, who in turn pass the information to PGA officials in a central production van. The technicians in the truck then relay that information to the PGA’s Web site as real-time scores-scores that are posted almost as soon as they are earned. The PGA sends the scores to a central media center at the same time, where reporters can access them. Also, the scores of the top 15 golfers appear on various leader boards stationed around the course. The PGA’s RTSS is the only source of compiled golf scores. The Tour forbids cell phones and palm pilots on the course, so they don’t disrupt play. And because several groups of golfers play separate holes simultaneously, it’s impossible for one person to keep track of everything that’s going on. The PGA’s terms of service on the use of those scores prevent others from free riding on the PGA’s work, which is a valid business justification for the Tour’s actions, Dubina wrote. “[W]e agree with the district court that even if PGA possessed monopoly power in the relevant market … PGA has a valid business justification for its actions,” he wrote. “Therefore, even if PGA is monopolistic, and even if PGA refused to deal with Morris, it has not violated … the Sherman Act.” IT’S NOT ABOUT PRESS FREEDOM But it wasn’t always clear that this was an antitrust case. The dispute drew attention and amicus briefs from the Georgia Press Association, Cox Enterprises and the New York Times Co. They worried that a ruling in favor of the PGA would limit the media’s ability to report the news. At argument in January, Gabel argued that because the scores are in the public domain, his client had a right to report them. But in the decision released Monday, Dubina put to rest any notion that the case had anything to do with the media. “Contrary to the arguments of Morris and its amici curiae, this case is not about copyright law, the Constitution, the First Amendment, or freedom of the press in news reporting,” he wrote. “This case is a straightforward antitrust case involving a product and a defendant’s assertion of a valid business justification as its defense to anticompetitive actions, if any.” In a footnote, Dubina remarked that the media amici “focus largely on irrelevant copyright law and argue that facts, such as golf scores, and compilations of facts are generally not a proper subject for copyright protection. While this assertion is a correct statement of law, it has no bearing on whether the golf scores and compilation of golf scores are the proprietary product of PGA’s RTSS.” The only real issue, he wrote, is whether the PGA’s restrictions on Morris’ right to sell the information the Tour compiles is a violation of antitrust law. Mishkin said the court correctly identified the dispute at the heart of the case. “This is an important decision, but it wasn’t a difficult decision,” he said.

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