A federal appeals court ruled that Motorola and Stats,
Inc. can transmit real-time NBA game scores and statistics
taken from radio and TV broadcasts, according to Michael
Rapoport of the WALL STREET JOURNAL. The 3-0 ruling
reversed a lower court ruling "which had enjoined" Motorola
and Stats, Inc. from disseminating information over pager
systems called Sportstrax and other online services. NBA
Legal Counsel Jeffrey Mishkin said the league plans to
appeal the ruling (WALL STREET JOURNAL, 1/31).
HOT TEST: The appeals court ruled that the NBA had not
met "a narrowly tailored 'hot news' test for prevailing on
such a misappropriation claim." The court ruled that
neither Motorola nor Stats were "free-riding" on the NBA's
information. The court also ruled that while "broadcasts of
athletic events are protected by copyright, the events
themselves aren't because they aren't 'original works of
authorship' under the law." The outcome isn't know in
advance and "wholly unexpected events may influence it."
The court said the ruling "applies equally" to an AOL site
featuring information provided by Stats. Stats attorney
Andrew Deutsch said he expects a separate NBA suit against
AOL and Stats to be dropped (WALL STREET JOURNAL, 1/31). In
N.Y., Lawrie Mifflin writes that the ruling "reiterated that
the facts and scores of a basketball game were facts, and
that under Federal copyright law, facts could not be
copyrighted." In her ruling for the NBA, lower court Judge
Loretta Preska noted the league's commercial property rights
were being taken without compensation. But the appeals
court ruled that the NBA claim "confuses three different
products:" the games, radio and TV broadcasts of those
games, and retransmission of "strictly factual information"
about those games. The opinion said: "The first and second
products are the N.B.A.'s primary business ... [but] there
is no evidence that anyone regards Sportstrax or the AOL
site as a substitute for attending N.B.A. games or watching
them on television" (N.Y. TIMES, 1/31).
REAX: On "Moneyline," CNN's Lou Dobbs called the ruling
a "big legal victory" for Motorola. Dobbs noted the court
"said the NBA failed to prove that it was harmed by the
transmission of those scores." Dobbs added that the ruling
could also be a "boon" to AOL ("Moneyline," CNN, 1/30).
Motorola Attorney Herbert Schwartz: "It's also an important
result for online providers and for the Internet because it
also allows people like America Online to give updated
scores in real time as the game goes on. ... It's important
for the new media in terms of their ability to transmit
facts promptly once those facts have been made public over
TV or radio" ("Market Wrap," CNBC, 1/30). ESPN's Bob Ley
noted the ruling was a "loss" for the NBA ("SportsCenter,"
ESPN, 1/30). In Chicago, Howard Wolinsky notes Stats and
Motorola "scored big" with the ruling. As for Sportstrax,
Motorola attorney Roger Dusberger said, "Sportstrax is a
great product with a lot of pent-up demand. But Motorola
management will need to re-evaluate whether and how to move
forward with the product" (CHICAGO SUN-TIMES, 1/31).
