With PacBell Park offering free WiFi at Giants games this season, a BoingBoing reader wonders “If I take my Powerbook to the ballpark and plug in my iSight Camera with it pointed towards the game, then isn’t that an illegal broadcast of Major League Baseball?”
An appellate court ruled on a In a decision issued this week, Morris Comm. Corp. v. PGA Tour Inc., the 11th Circuit ruled that the PGA tour can prevent web sites from publishing compiled real-tme golf scores without violating the Sherman Anti-Trust Act (15 U.S.C. §2).
The Morris decision is not applicable to the situation in Pac Bell Park. The PGA does not allow the use of cell phones or handheld devices on the course during play. The only way to collect complete scoring information during a PGA tournament is to use the tour’s electronic scoring system, available at the event media center. The PGA restricts access to the media center to organizations credentialed by the PGA.
The 11th Circuit affirmed the District Court’s decision, finding that the PGA’s actions do not exclude competitors from the market.Eeven if the PGA possessed monopoly power in the relevant market, the PGA has a valid business justifications for its actions, and so those actions are not prohibited by the Sherman Act. Here, the valid business justification was to “prevent free-riding” on the real-time scoring system which the PGA spent considerable money to develop. While “sweat of the brow” is not a valid argument for granting copyright protection, preventing free-riding is a valid business justification for excluding competitors under antitrust law.
Under this reasoning, the Giants could have a valid business justification for enacting contract terms to prevent a fan from sitting in the stands and webcasting the game. Major League Baseball has invested money to employ the umpires and the Giants have invested money to pay their players and stadium staff. Furthermore, MLB invested money in installing equipment and negotiating an exclusive deal with Real.com to webcast baseball games. Unlike golf, Major League Baseball has no similar, legitimate reason for preventing the use of phones or handheld devices within the stadium In fact, the Giants seem to be encouraging the use of handheld devices or portable computers from within the stadium and might not add a contract clause to prevent webcasting. Whether such a contract would be enforceable will depend on its specific terms.
Currently, theGiants’ Pac Bell Park guide states: “Cameras and video equipment are allowed in SBC Park. However, the equipment may not obstruct the view or path of travel of others. Fans are not allowed to reproduce or re-broadcast any film or videotape of Giants games for commercial purposes without the written permission of the San Francisco Giants and Major League Baseball.”
At Lawgorithm, Dan thinks these terms should be sufficient to stop an independent webcaster on unfair competition grounds:
It is well-established that the teams have the right to sell exclusive licenses to broadcast their games. See Pittsburgh Athletic Co. v. KQV Broadcasting Co., 24 F. Supp. 490 (W.D. Pa. 1938). Pittsburgh Atletic (the Pirates) had sold the exclusive rights to broadcast their games to General Mills, which then contracted with NBC to broadcast the games on radio stations KDKA and WWSW. Defendant KQV had observers standing outside the stadium (not under the standard ticketholder contract), watching the game and broadcasting live play-by-play. The Pirates sued to enjoin KQV from broadcasting. KQV said the Pirates had no rights in the facts of the game and that it intended to continue. The court found for the Pirates on unfair competition grounds, following INS v AP, 248 U.S. 15 (1918).
The Giants’ home opener is on April 12, against the Milwaukee Brewers.
Law.com reports on the PGA decision: PGA Wins Round Over Real-Time Scores
