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Saturday, August 27, 2011

Ind. Decisions - 7th Circuit ruling on live-streaming of high school state tournament games

The 7th Circuit decision August 24, 2011 in the case of Wis. Interscholastic Athletic Ass'n. v. Gannett Co. is the subject of a story in today's Indianapolis Star reported by Nat Newell. Some quotes from the story:

A federal appeals court ruling earlier this week upheld the Wisconsin Interscholastic Athletic Association's ability to sell exclusive rights to live-streaming state tournament games online. The Indiana High School Athletic Association had filed a brief in support of the WIAA's case and welcomed the decision.

"It's a big, big victory for state associations," IHSAA commissioner Bobby Cox said Friday. "It solidified the notion that we can protect our content."

The WIAA sued the Appleton Post-Crescent newspaper in 2008 after it streamed four high school football playoff games. A federal judge sided with the WIAA last year and the 7th Circuit Court of Appeals affirmed the decision, saying the First Amendment doesn't guarantee media outlets free broadcasting rights. * * *

State high school associations control the rights to postseason events while the high schools are the rights-holders for the regular season, according to IHSAA lawyer Bob Baker. Cox said when websites have live-streamed IHSAA events without permission, the IHSAA has filed cease and desist orders.

The story also notes that "Live-streaming is not currently a significant moneymaker for the IHSAA. The fee is $35 to $100 per game depending on the sport and playoff round."

From Wednesday's 33-page opinion, written by Judge Wood:

As the governing body for middle and high school athletic programs in Wisconsin, the Wisconsin Interscholastic Athletic Association (WIAA or Association) sponsors statewide post-season tournaments. In 2005, WIAA contracted with American-HiFi, a video production company, to stream its tournament events online. Under this contract, American-HiFi has an exclusive right to stream nearly all WIAA tournament games. If American-HiFi elects not to stream a game, other broadcasters may do so after obtaining permission and paying a fee. Notably, the exclusive broadcast agreement between American-HiFi and WIAA concerns entire game transmission; it does not prohibit media coverage, photography, or interviews before or after games. Private media may also broadcast up to two minutes of a game, or write or blog about it as they see fit, so long as they do not engage in “play-by-play” transmission.

Taking the position that these exclusive license agreements violate a supposed First Amendment right to broadcast entire performances, newspapers owned by Gannett Co., Inc., decided to stream four WIAA tournament games without either obtaining consent or paying the fee. In response, WIAA filed this declaratory judgment action in state court asserting its right to grant exclusive licenses. After Gannett removed the case to federal court, the district court entered summary judgment in favor of WIAA.

On appeal, the only issue presented concerns the First Amendment as it might apply to WIAA’s internet streaming rules. Gannett argues that WIAA, a state actor, cannot (ever, it seems) enter into exclusive contracts with a private company for the purpose of broadcasting entire events online, or, more broadly yet, to raise revenue. Gannett does not challenge other restrictions on media access to WIAA’s events, or even WIAA’s other exclusive licenses, like those WIAA has for television and radio broadcast. But the implications of Gannett’s arguments are staggering: if it is correct, then no state actor may ever earn revenue from something that the press might want to broadcast in its entirety. That is not correct. Gannett’s theory that coverage and broadcast are identical is both analytically flawed and foreclosed by Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977). Simply put, streaming or broadcasting an event is not the same thing as reporting on or describing it. In addition, Gannett overlooks the importance of the distinction between state-as-regulator and state-as- proprietor, which in turn leads it to fail to appreciate the fact that tournament games are a performance product of WIAA that it has the right to control. Thus, because the exclusive agreements between WIAA and American- HiFi are otherwise not contested, and we find no reason in the First Amendment to change them, we affirm the district court’s judgment for WIAA. * * *

We conclude that WIAA’s exclusive broadcasting agreements for internet streaming are consistent with the First Amendment. This conclusion, as Zacchini implies, also supports WIAA’s right to charge a fee to a broadcaster wishing to stream a game that American- HiFi has decided not to publish. It is not, as Gannett contends, a “special tax on the press.” Minneapolis Star & Trib. Co. v. Minnesota Comm’r of Rev., 460 U.S. 575, 576 (1983). WIAA is not prohibiting the media from reporting on its events, nor is it imposing outrageous fees for media members to have access to games. It does not require the media to submit stories or blog posts to its editors before they are published. Any of those actions would make this a significantly different case. In the case before us, while our reasons differ from those that the district court gave, our ultimate conclusion is the same. WIAA is entitled to summary judgment in its favor, and we therefore AFFIRM the judgment of the district court.

Posted by Marcia Oddi on August 27, 2011 08:38 AM
Posted to Ind. (7th Cir.) Decisions