Some News Can’t Be Shared Online for Free, Court Rules

Rhett Pardon
ATLANTA – In a decision involving licensing agreements, online information and the right of freedom of speech, the 11th U.S. Circuit Court of Appeals said that media companies can be barred from selling some real-time information online.

The opinion, which was released Monday, centered on the ability of Morris Communications and its ability to sell golf scores from the PGA Tour.

The court was asked to decide the legality of an opinion from a lower court that held the PGA has a legitimate business interest in keeping media companies from disseminating tournament scores online as they occur.

Atlanta, Ga.-based Morris and the PGA both accused the other of seeking to control access to tour scores for commercial purposes. But the 11th Circuit 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,” Judge Joel F. 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."

Morris complained that the PGA’s online service regulations make it the only entity that can sell real-time golf scores, and thus, violating the Sherman Act by monopolizing the market of compiled real-time golf scores.

PGA’s regulations include a provision that media organizations wait to post the scores the PGA compiles until the PGA posts them on its website, or until 30 minutes have passed since the shot-whichever comes first. Another provision of the contracts bar companies from selling the scoring information to third – unless they buy a license to do so from the PGA.

In the case, the PGA contended it wasn’t trying to control information but simply tried to keep Morris from taking information the PGA spends a lot of money to compile and disseminate for free to the media.

The PGA Tour forbids cell phones and palm pilots on the course, so they don’t disrupt play and the PGA’s RTSS is the only source of compiled golf scores.

The dispute drew attention from the Georgia Press Association, Cox Enterprises and the New York Times Co., which worried that a ruling in favor of the PGA would limit the media’s ability to report the news.

In the decision, Dubina put to rest any notion that the case had anything to do with the media.

“[T]his case is not about copyright law, the Constitution, the First Amendment, or freedom of the press in news reporting,” Dubina 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.”

Morris attorney George D. Gabel Jr. of Jacksonville, Fla., said he was sure his client would seek a rehearing and if necessary an appeal to the U.S. Supreme Court.

The case is Morris Communications Corp. v. PGA Tour Inc., Nos. 03-10226 and 03-11502.