Introduction to Intellectual Property Law & Policy Law 507 Spring Term Professor Wagner

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1 Introduction to Intellectual Property Law & Policy Law 507 Spring Term Professor Wagner C O P Y R I G H T V I I I : C L A S S E X E R C I S E T H E O N E W I T H T H E G O L F S C O R E S This class exercise is a simulated trial concerning several copyright issues, intended to highlight at least some of the questions we ve been talking about in the copyright section of the class. There are three parties to this lawsuit: I 1. The co-plaintiff is PGA Tour, Inc., is a Florida-based corporation that runs major professional golf tournaments throughout the United States. The record evidence in this case shows that the PGA Tour is the most widely recognized professional golfing tour in the United States. Although there are other golf tournaments which generate fan interest, few can rival PGA Tour events in terms of overall popularity. 2. The other co-plaintiff is Tiger Woods, Inc., a Florida-based corporation that manages (and has rights to) all of the intellectual property assets of the world-famous golfer of the same name. The record in this case indicates that Tiger Woods is the most popular and recognizable golfer in the United States. 3. The defendant, Jones Communications, Inc., is a Georgia corporation that publishes over thirty traditional print newspapers as well as a number of Internet-based, electronic newspapers. Jones is increasingly moving into a new business of providing support services for newspapers, online services, and wireless news services. 1

2 I I The parties' dispute in this case concerns the on-line publication of "real-time" golf scores. Real-time scores, as the term suggests, are scores that are transmitted electronically nearly contemporaneously to their actual occurrence on the golf course. In this way, Internet users are able to track, during a golf tournament, each participating player's progress on a hole-by-hole basis. In order to improve its scoring capabilities for its tournaments, including transmission of real-time golf scores over the Internet, the PGA Tour has designed and implemented an elaborate electronic relay known as the Real-Time Scoring System ("RTSS"). RTSS works as follows: During a given golf tournament, volunteer workers called "hole reporters" follow each group of golfers on the golf course and tabulate the scores of each player at the end of each hole. The scores are then collected by other volunteers located at each of the eighteen greens on the golf course, who, with the aid of hand-held wireless radios, relay the scoring information to a remote production truck staffed by personnel employed by the PGA Tour. The scores of all participating golfers are then processed at the remote production truck and transmitted by the PGA Tour to its Internet web-site, pgatour.com. The PGA Tour claims that it takes "about five minutes" for the information to be routed from the production truck to pgatour.com. At the same time, real-time scores are also transmitted to an on-site media center where accredited members of the media are able to access the scores. The same information is also transmitted to various electronic "leaderboards" located throughout the golf course for public viewing by spectators. The leaderboards do not simultaneously show the real time scores of all participating golfers. Rather, they typically show only the top ten or fifteen scores. The PGA has invested millions of dollars in developing its scorereporting system, and sees a future where such real-time (or near realtime) information is an increasing component of its revenues. I I I At issue in this case are two of Jones new service ventures: (1) The Golf Syndication Service (GSS); and (2) the Golf Update Service (GUS). Each of these services, in essence, repackage and report the scores of PGA Tour golf tournaments, in real time. 2

3 The GSS provides subscribing publications (typically online news and sports web sites) with the golf scores from current PGA Tournaments. Jones GSS service gathers the scores by utilizing a custom-made computer application, known as the ScoreScraper. Every 30 minutes, the ScoreScraper application (located on Jones servers) accesses the section of PGA Tour web site (pgatour.com) that reports the current scores of the golf tournament. 1 ScoreScraper automatically copies/extracts a list consisting of each player, his or her score, the player s position (i.e., 1 st, 2 nd ), and their current hole played. No graphics or other text is copied. The data returned by ScoreScraper is then republished as a simple list, in order of position, by the GSS service. Jones has developed this system to the degree that human intervention is not required: GSS subscribers simply receive every 30 minutes, via , a text file containing the golf scores. GSS subscribers typically post this information on web pages. The GUS offers similar services, but the data is obtained via a very different way: to compile GUS information, Jones hires golf spectators to report back, via wireless two-way pagers, the information (same as that noted above) provided on the leaderboards at the actual golf venues. The Jones employees are instructed to report new scores posted on the leaderboards within 15 seconds of their appearance. The information is relayed to Jones headquarters, where it is automatically processed and sent via to subscribers, as with the GSS. The difference between GUS and GSS is that the GUS service offers faster/more frequent updates, while the GSS offers a longer list of player scores. I V The PGA Tour and Tiger Woods, Inc. have sued Jones for copyright infringement and/or violation of a license agreement for both the GSS and GUS systems. (No claims have been made based on unfair competition, antitrust, patent, trademark, etc.) Tiger Woods, Inc. additionally petitions the court to declare it the copyright holder of all 1 Accessing this section of pgatour.com from the home page links presents users with a Terms of Service page, which requires that I agree be clicked to continue on. Among other point, the Terms of Service states: Users agree that golf score information is copyrighted by PGA Tour, Inc. Users are forbidden from copying or otherwise processing the golf score information in any manner whatsoever. 3

4 tournament information related to Tiger Woods scores, positions, current hole, etc. (Assume there is no agreement between PGA Tour and Tiger Woods that addresses this point.) Jones responds by arguing that copyright does not apply to its GSS and GUS activities, and that even if it does, these activities do not infringe and/or are fair use as that term is used in 17 U.S.C The case is now set for bench trial in front of a multi-member panel of the U.S. District Court for the Upper District of Penn Law School. E X E R C I S E I N S T R U C T I O N S This class session will be a simulated trial on the case above. students will be assigned one of four roles: All Representatives of PGA Tour, Inc. Representatives of Tiger Woods, Inc. Representatives of Jones Communications, Inc. The Judges of U.S. District Court for the Upper District of Penn Law School Each role-group will have approximately 2 at the beginning of the class to meet and discuss the case, and plot an argument strategy. Thereafter, the trial will convene, with the following schedule of arguments: Case-in-Chief PGA Tour: Tiger Woods: Jones: Rebuttals: PGA Tour: Tiger Woods: Jones: 4

5 Decision: Judges Deliberation: 7 minutes Judges Decision: 3 minutes Each role-playing group must appoint at least three spokespersons, two of which will present the case-in-chief, and one of which will handle the rebuttal. (More speakers can be appointed.) The Judges are in charge of the courtroom, and are expected to ask probing questions, etc. The Judges decision need not be unanimous; a majority and dissenting view are perfectly acceptable. No appeal can be taken. The Bailiff (a.k.a. Professor Wagner) will ruthlessly enforce the timing schedule and be the final, unquestioned authority on matters of procedure, law, and anything else that comes up. GROUP ASSIGNMENTS Role Groups Assigned Representatives of PGA Tour, Inc. 1, 2, 3 Representatives of Tiger Woods, Inc. 4, 5 Representatives of Jones Communications, Inc. The Judges of U.S. District Court for the Upper District of Penn Law School 6, 7, 8 9, 10 5