Morris Communications Corp. v. PGA Tour, Inc.

ORDER

This cause is before the Court on Defendant’s Motion for Summary Judgment (Doc. No. 109, filed June 24, 2002) and Plaintiffs Response (Doc. No. 136, filed June 24, 2002); Plaintiffs Motion for Partial Summary Judgment on Liability (Doc. No. 125, filed June 24, 2002) and Defendant’s Memorandum of Law in Opposition (Doc. No. 139, filed June 24, 2002) 1 ; and Defendant’s Motion to Strike Plaintiffs Second Notice of Supplemental Authority (Doc. No. 150, filed July 16, 2002). Following a hearing during which both sides presented oral argument on the summary judgment motions, all pending motions are ripe for consideration.

As an initial matter, Defendant’s Motion to Strike is DENIED.

I. Background

Introduction

Many issues revolve around the periphery of this case, and the Court will take a minute to address what the case is and is not about. The quintessential issue is who has the right to instantaneous information and its value. This case is not about the ability or right of a publisher to disseminate and profit from information and facts released into the public domain through radio or television broadcasts or through a web site. Nor is this case about the ability of the media to cover and publish information for a story in the next day’s paper or even in that evening’s television news coverage. The First Amendment freedom of the press, while at first blush might appear to be relevant, is not involved. See National Broadcasting Co. v. Communications Workers of America, 860 F.2d 1022, 1024 (11th Cir.1988)(stating that the First Amendment right of Free Press does not apply absent state action). The case, in general, does not resolve issues of journalistic integrity. 2 This case is to some ex *1272 tent about Morris’s claimed ability or need to track a single player, ranked 100, from a small town who is not currently covered by the leader-board or being covered by the broadcast station. Morris needs access to all the players’ scores to relate to a local following in that small town where its native son or daughter stands in relation to the other players in the tournament. Finally, this case is not about “streaming” video and audio or “webcasting.” 3

Factual Background 4

Plaintiff, Morris Communications Corporation (“Morris”), is a Georgia corporation that publishes over thirty traditional print newspapers as well as a number of Internet-based, electronic newspapers. Defendant, PGA Tour, Inc. (“PGA Tour”), is a Maryland corporation with its principal place of business in Ponta Vedra, Florida. The PGA Tour is mainly engaged in the business of promoting professional golf tournaments throughout North America, collectively known as the PGA Tour. Players on the PGA Tour, generally recognized to be among the best golfers in the world, assign all television, radio, motion picture and other rights related to PGA Tour events to the PGA Tour, and with limited exceptions, are restricted from competing in tournaments sponsored by other entities. 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.

At issue in this case is the extent to which the PGA Tour may be allowed to limit the access of Morris and other media entities to its own private golf tournaments. Specifically, the Court must resolve whether the PGA Tour may legally condition access to its tournaments on Morris’s agreement not to syndicate “real-time” golf scores obtained from an on-site media center. As this Court noted in its Order denying Morris’s Motion for Preliminary Injunction 5 and as the parties have emphasized throughout these proceedings, this case is more than simply about golf scores. Rather, it presents a novel and compelling question of who has the “right” to report the news, produced and gathered by others, in an age of near-instantaneous information.

PGA Tour events are covered extensively by a number of different print, broadcast, and electronic media organizations. Although these events are conducted on private golf courses, the PGA Tour issues credentials to members of the media who *1273 are thereby invited to its tournaments for the purpose of providing media coverage. Traditionally, Morris and its subsidiary publications have been among the entities that have received media credentials to PGA Tour tournaments. Both the PGA Tour and members of the media have traditionally benefitted from this arrangement in that the media are better positioned to satisfy the public’s demand for golf-related information, and the PGA Tour enjoys enhanced publicity, which in turn generates greater demand for its golf tournaments and related goods and services, thus producing revenue for the PGA Tour.

Real Time Golf Scores

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. 6 The scores of all participating golfers are then processed at the remote production truck and transmitted by the PGA Tour to its Internet website, 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.

Due to the nature and size of golf courses, which may span as much as 150 acres, comprehensive real-time scores— that is, up-to-the-minute scores of every competitor — can only be compiled using a relay system such as RTSS. During a golf tournament, different groups of players compete contemporaneously at different holes such that any one spectator can only view a limited number of players at any one of the eighteen holes. Thus, in order to generate, real-time scores, it is necessary to have-individuals stationed at each hole as the tournament progresses so that the entire golf course can be monitored simultaneously. Acknowledging that some kind of relay system is needed to generate the type of real-time scoring information it wishes to, syndicate, Morris submits that it is unable to implement such a system itself due to the PGA Tour rules prohibiting *1274 unauthorized use of wireless communication devices on the golf course at its tournaments. 7

Although the exact amount is unknown, it appears that the PGA Tour has invested tens of millions of dollars in RTSS, dating back to the early 1980s. Nevertheless, not all of this investment has been devoted solely to developing Internet-based scoring. The Internet did not rise to prominence until at least the mid-1990s, and pgatour.com did not become operational until 1997. Moreover, the evidence in this case shows that RTSS was, and continues to be, developed with an eye toward enhancing the on-site scoreboards for live spectators and for television broadcasts. For example, Ken Finchem, who is presently the Commissioner of the PGA Tour, noted in 1990 that “the electronic scoreboard system was created to provide the growing number of spectators at PGA Tour tournaments with up to the minute information on action all around the course.”

Additionally, the Internet presently represents only a small fraction of the PGA Tour’s overall revenue. For example,'the PGA Tour’s annual revenues from its Internet syndication contracts is approximately $130,000. In contrast, a 1999 financial audit of the PGA Tour revealed “direct” revenues of $306,510,000, which included revenues from television and tournaments.

Nevertheless, the PGA Tour has made no secret in this litigation of its desire to maintain a commercial advantage in the market for selling real-time golf scores and has vigorously defended its right to protect its proprietary investment in RTSS. To that end, it has enacted a series of regulations designed to prevent potential competitors from immediately selling scores obtained in the media center to third parties.

On Line Service Regulations

Prior to 1999, credentialed members of the media could view scores in the media center and then re-key them directly into their own computers for transmission to their company’s Internet servers. The result was that competitors of pgatour.com, including Morris, were able to publish real-time scores on their web sites as fast as or possibly faster than pgatour.com. Beginning in January 1999, shortly after the PGA Tour entered into an exclusive syndication contract with USA Today, it instituted Online Service Regulations (“OLSR”) applicable to all credentialed media invitees. Around the same time, Morris began publishing scores from PGA Tour tournaments on its web sites and selling them to third parties, and Morris appears to have been the PGA Tour’s only major competitor in the syndication market. 8

Under the terms of the original OLSR, scoring information obtained from the media center could be published on any web site, but not sooner than 30 minutes after the actual occurrence of the shots. The PGA Tour’s admitted purpose for the new regulations was to allow it to have the first opportunity to post the real-time scores on its web site and those of its syndicates.

In April 1999, the PGA Tour amended its OLSR so that scoring information, obtained in the media center, could appear on an unaffiliated web site either no sooner *1275 than 30 minutes after the actual occurrence of the shots or when the information became legally available as public information. 9 Shortly afterwards, the PGA Tour agreed to allow Morris to immediately publish ■ scores obtained from the media center on its own web-sites, but not on the web-sites of non-credentialed third parties. In January 2000, the .PGA Tour again amended its OLSR so that “no scoring information may be used by, sold, given, distributed or otherwise transferred to, any party other than the Credentialed Site in any manner whatsoever, without the prior written consent of the PGA Tour.” Violators were subject to revocation of their media credentials.

In May 2000, the PGA Tour learned that Morris was planning to sell scoring information obtained directly from ,the media center to the Denver Post, in violation of the January 2000 OLSR. The PGA Tour reminded Morris of the prohibition against syndicating scores obtained in the media center. After some discussion between the parties, the PGA Tour agreed to allow Morris to syndicate scores to the Denver Post for one tournament only.

In August 2000, after some additional negotiations, the PGA Tour agreed to waive the restriction on selling real-time golf scores to third parties on the condition that Morris agree to collect the scores to be sold for syndication from pgatour.com rather than the on-site media center. Morris attempted to gather real-time golf scoring information using this alternative method but ultimately abandoned it as unworkable. • Among other problems, there was an inevitable delay in scores taken directly from pgatour.com because of the time needed to re-key the scores from that web site onto Morris’s servers. In the meantime, Morris continued to negotiate syndication contracts with a number of third parties, apparently assuming that some satisfactory resolution would be reached with the PGA Tour.

On September 13, 2000, Morris informed the PGA Tour that its attempts at obtaining real-time scores through pgatoür.com had failed and requested that it be credentialed to syndicate real-time scores directly from the on-site media center. The PGA Tour refused to accommodate' this request. It subsequently informed Morris that media credentials would only be provided on the condition that scoring information collected from the on-site media center be used only in publications within the Morris Communications Group, as required under the OLSR.

Motion for Preliminary Injunction

On .October 11, 2000, Morris filed its Complaint and Motion for Preliminary Injunction, alleging violations of Section 2 of the Sherman Act, 15 U.S.C. § 2, the Florida Antitrust Act, Fla. Stat. § 542.19, and the Floridá Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201 et seq. Morris alleged that the PGA Tour possesses monopoly power over access to its golf tournaments and has unfairly used that power by attempting to stifle competition in the separate market for syndicated real-time goif scores. In response, the PGA Tour argued that it enjoys a property right in RTSS and that its regulations restricting the syndication of real-time golf scoring information gathered and generated by RTSS constitute a reasonable safeguard against would-be free riders seeking to unfairly capitalize on its product.

This Court denied Morris’s Motion for Preliminary Injunction, finding that Mor *1276 ris had failed to meet its high burden for proving entitlement to injunctive relief. See Morris Communications Corp. v. PGA Tour, 117 F.Supp.2d 1322, 1326 (M.D.Fla.2000). The Court found that Morris had failed to show a substantial likelihood of success on the merits of its Section 2 monopolization claims. 10 Even assuming that the PGA Tour possessed monopoly power in the market for real-time golf scores, Morris had not shown that the PGA Tour lacked a legitimate business justification for its restrictions on syndication of real-time scores. Specifically, the Court was without sufficient evidence regarding the extent to which it would be condoning free riding on the PGA Tour’s proprietary investment in RTSS if it ordered the PGA Tour to allow Morris unconditional access to its on-site media centers. Id. at 1326-30.

Effects of the On Line Service Regulations

Both parties have submitted substantial evidence regarding the OLSR’s possible effects on competition. Not surprisingly, the evidence is somewhat contradictory in this regard. For example, the PGA Tour produced the deposition transcript of the new media sports producer of The Augusta Chronicle, which is owned by Morris. He stated that at least one Internet syndication customer, insidetheropes.com, “never made any demands as to time length [between the occurrence of scores and their real time publication].” Similarly, Mike McLeod, the project manager for golf at CNN/SI, with whom Morris has a syndication contract, stated that even when Morris was required to transmit golf scores remotely, i.e., off of pgatour.com rather than directly from the media center, “for CNN/SI’s editorial purposes, the scores were reported fast enough to be editorially acceptable.”

This evidence, however, is belied by other evidence presented by Morris suggesting that both consumers 11 in the syndication market and the PGA Tour itself place a premium on speed. This evidence suggests that" OLSR have the effect of harming competitors’ ability to compete for the sale of syndicated real-time golf scores. For example, Mr. McLeod’s comments notwithstanding, it appears that the value of Morris’s syndication contract with CNN/SI has decreased dramatically since the OLSR were implemented. Under the original syndication agreement, executed in 1999, CNN/SI agreed to pay Morris approximately $431,666 annually for real-time golf scores. In 2001, when the OLSR were in effect, that amount was $185,599. By 2002, it had been further reduced to $150,000. By the same token, the record reflects that the PGA Tour has raised the prices for real-time golf scores in its own syndication agreements with USA Today. Moreover, in its most recent contract with USA Today, the PGA Tour no longer promises exclusive syndication rights, which arguably makes the agreement less valuable to USA Today despite the higher price. 12 The higher prices for real-time scores may reflect a consumer preference *1277 for more up-to-date scores, which is reflected elsewhere in the record. For example, hits on pgatour.com have increased by 50 to 100% since the PGA Tour first instituted its OLSR.

Perhaps most tellingly, the PGA Tour itself has acknowledged that the OLSR were implemented in order to maintain a commercial advantage. In a January 1999 letter to Carl Cannon, Vice President of Morris and Publisher of the Florida Times Union, Commissioner Finchem stated that:

The primary reason for requiring this delay [in the OLSR] is so that pgat-our.com, the PGA TOUR’s own web site, can have a window of exclusivity for the provision to the public of our basic product, official real time scores from our events. We have found that the appearance of exclusive real time scores on our web site drives tremendous traffic volume to the site during times when tournaments are being conducted, particularly outside the television coverage window. Requiring a thirty (30) minute delay in the dissemination of scores enables us to preserve the value of our real time scoring.

Thus, the record seems to clearly indicate that the OLSR have the purpose and effect of giving the PGA Tour a commercial advantage in the syndication market and disadvantaging potential competitors, including Morris. As discussed below, this does not necessarily mean that the PGA Tour has violated any antitrust laws. Nevertheless, it is important to identify the OLSR’s potentially deleterious effect on competitors, if not competition.

Moreover, Morris notes that if the PGA Tour is either unable or unwilling to publish real time golf scores from its tournaments on pgatour.com, consumers are foreclosed from obtaining such information on the Internet. Morris cites the example of the recent World Golf Championship, where pgatour.com did not publish real-time scores. As a result, the real-time scores ■ were simply unavailable on line.

In its summary judgment, papers, Morris responds to the concerns raised in the Court’s Preliminary Injunction Order by arguing that it. has successfully demonstrated a lack of any pro-competitive justification for the OLSR. For its part, the PGA Tour, continues to assert that it has a proprietary right in RTSS, and the OLSR represent a commercially reasonable way to protect its investment. The PGA Tour also argues that Morris cannot show monopoly power in any relevant market, a prerequisite to prevailing on a. monopolization claim. Specifically, it asserts that there is no distinct product market for “real-time” golf-scores, and Morris’s monopolization claims must therefore be dismissed.

II. Standard of Review

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled-to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving- party bears the initial burden of showing the Court, by -reference to materials on file, that there are no genuine issues of material fact that should be decided at trial. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). When a moving party has discharged its burden, the nonmoving party must then “go beyond the pleadings,” and by its own affidavits, or by “depositions, answers to interrogatories, and admissions on file,” designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

*1278 In determining whether the moving party has met its burden of establishing that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law, the Court must draw inferences from the evidence in the light most favorable to the nonmovant, Key West Harbour v. City of Key West, 987 F.2d 723, 726 (11th Cir.1993), and resolve all reasonable doubts in that party’s favor. Spence v. Zimmerman, 873 F.2d 256, 257 (11th Cir.1989).

Thus, if a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, then the Court should not grant the summary judgment motion. Augusta Iron and Steel Works v. Employers Insurance of Wausau, 835 F.2d 855, 856 (11th Cir.1988). It must be emphasized that the mere existence of some alleged factual dispute will not defeat an otherwise properly supported summary judgement motion. Rather, “the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is “genuine” if the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52, 106 S.Ct. 2505.

The parties assert, and the Court agrees, that there is no genuine issue of material fact, and summary judgment is appropriate.

III. Analysis

A. Antitrust claims

Morris asserts four antitrust claims: 1) monopolization of the Internet markets, 2) unlawful refusal to deal, 3) monopoly leveraging, and 4) attempted monopolization of the Internet markets. Before addressing the elements of each of the antitrust claims, the Court will first address the PGA Tour’s assertions that valid business reasons justify the exclusionary practice found in the OLSR, because valid business reasons are a defense to the antitrust claims. Once the PGA Tour asserts valid business justifications for its action, Morris bears the burden of proving that the proffered business justification is pretextual. See U.S. Anchor Mfg., Inc. v. Rule Industries, Inc., 7 F.3d 986, 1002 (11th Cir.1993). Free-riding 13

Morris asks the Court to force the PGA Tour to provide Morris with the compilation of scores, for which the PGA Tour spends considerable money and time creating, at no cost to Morris. While Morris does invest its own cost in re-keying the scores for syndication, Morris free-rides on the PGA Tour’s efforts in compiling the scores. As Morris admits in its Memorandum of Law, “Morris cannot duplicate the functions of RTSS, which depends on the efforts of hundreds of volunteers each week.” Even if it is the efforts of “volunteers”, the PGA Tour has still invested time and money in the organization and technology to make RTSS possible. 14

Morris contends that it is not free-riding and cites to the Kodak, Motorola, and As pen cases. Eastman Kodak Co. v. Image *1279 Technical Services, Inc., 504 U.S. 451, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992); Nat'l Basketball Ass. v. Motorola, Inc., 105 F.3d 841, 854 (2nd Cir.1997); Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985). However, none of these eases is applicable to the instant ease. In Motorola, the court found that Motorola did not free-ride when it created a network that disseminated scores from NBA basketball games. See Motorola, 105 F.3d at 854. Three distinctions between Motorola and the instant case make Morris’s claim untenable. First, the Motorola court used a very high standard for free-riding that is applicable only in cases with the hot-news exception, which will be discussed in greater detail below. More importantly, the information that Motorola used to create its product was in the public domain, having been broadcast on television or radio. See id. at 843. Specifically, Motorola-paid reporters, who had heard the radio or television broadcast scores, reported the information to a central location and merely relayed what had been known to the world. See id. at 844. Golf, unlike basketball, precludes a single person gathering all the information occurring on all 18 holes. So when television and radio cover a basketball game 15 , the score is presented to the public through those media outlets, allowing Motorola to obtain the information and republish it. If Morris were able to gather scores from all 18 holes through a television or radio broadcast, Morris could then republish that information, absent a hot-news exception. 16 However, golfs atypical format prevents any single televisipn or radio broadcast from providing results from all 18 holes live. 17 The PGA Tour does publish the scores in the media center, 18 but the media cannot disseminate that information except as the PGA Tour’s press credentials allow them to do. 19 As a result, the scores, which are not protected by copyright, remain outside the public domain and within the PGA. Tour’s control, because the, PGA Tour provides access, with certain restrictions. 20 Finally, Motorola benefitted from the NBA’s costs in producing and marketing the games and from the radio and television stations who paid for broadcast rights: that is Motorola capitalized on the NBA’s positive external-ities. However, the NBA and the broadcast stations had already reaped the profits of their investment, and the information was in the public domain at the moment of *1280 broadcasting. Additionally, once in the public domain, Motorola “expended] their own resources to collect purely factual information generated in NBA games.” Id. at 854. While here, Morris does not expend its own resources in gathering information, which is not in the public domain, but instead free-rides on the PGA Tour’s compilation of scores.

Reliance on the Kodak case is similarly misplaced. Kodak ’claimed that the independent service providers (ISP) of Kodak’s copiers free-rode on Kodak’s investment in product development. See Kodak, 504 U.S. at 485, 112 S.Ct. 2072. “According to Kodak, the ISP’s are free-riding because they have failed to enter the equipment and parts markets;” the Court rejected Kodak’s free-riding claim. Id. However, this is not the type of free-riding that the PGA Tour is trying to prevent. The PGA Tour is not arguing that Morris free-rides on the PGA Tour’s investment in the promotion of championship golf tournaments, but on its investment in the compilation of golf scores. Morris wants to commercially exploit information that the PGA Tour has expended money in gathering and has not reaped the full benefit possible from its investment.

Morris claims that the plaintiff in Aspen could not have won, if this Court accepts the PGA Tour’s definition of free riding. However, Aspen was not a case about free riding, as the plaintiff ski company in Aspen did not free ride on defendant ski company’s investments. The defendant, in Aspen, refused to sell plaintiff lift tickets at any price or even honor vouchers for tickets and discontinued a profitable joint arrangement with the plaintiff without a business justification. See Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 594-95, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985). The plaintiff in Aspen was not free riding, because it was willing and attempted to pay for its customers to ski at defendant’s resort.

Morris further argues that although even if it is free-riding on the collection of scores, antitrust law does not condemn such free-riding. The Court agrees with Morris in its assertion that free-riding on “positive externalities” is accepted by society and courts. See Areeda, Antitrust Law, Vol. Ill, ¶ 1613(b). However, what Morris seeks is not a positive externality. If Morris were selling the scores after the scores were released on a website, Morris would be benefitting from PGA Tour’s positive externality, i.e., the public’s interest in information about championship golf. 21 As the near instantaneous scores are not in the public domain and as the PGA Tour maintains an interest in the score until they are in the public domain, the scores are not externalities until the PGA Tour has reaped its reward or forgone that possibility.

Morris additionally argues that even if there is free-riding, it must reach the level that would justify a “hot news” property right. However, the Court finds that to be a business justification free-riding does not have to reach the level that the Motorola court held necessary for a hot news exception. The Motorola court required the free-riding to be so pervasive that all incentives to undertake an activity would be lost. See Motorola, 105 F.3d at 853. However, to be a valid business reason, a much lower level of free riding will justify excluding competitors. See Areeda, Antitrust Law, Vol. Ill, ¶ 658(f)(“once a proffered business purpose has been accepted as asserted in good faith and not as pretense, the defense does not require ‘bal- *1281 anting’ of social gains against competitive harms... ”).

Property Right in the Scores

The PGA Tour claims that the restrictions have a valid business justification, because they are necessary to protect a property right in the scores that it compiled by use of RTSS. Morris argues that the PGA Tour lacks a property right in the score, thus negating the claimed business justification. For the following reasons, the Court finds that the PGA Tour does have a property right in the scores compiled by the use of RTSS, but that property right vanishes when the scores are in the public domain. 22

The PGA Tour’s property right does not come from copyright law, as copyright law does not protect factual information, like golf scores. See Feist Publications v. Rural Tel. Serv. Co., 499 U.S. 340, 348, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). However, the PGA Tour controls the right of access to that information and can place restrictions on those attending the private event, giving the PGA Tour a property right that the Court will protect.

In the early half of the 20th Century, the Supreme Court dealt with a similar issue in several cases, known as the “ticker cases”. In Board of Trade of the City of Chicago v. Christie Grain and Stock Company, 198 U.S. 236, 25 S.Ct. 637, 49 L.Ed. 1031 (1905), the appellee sought an injunction preventing the use and distribution of “continuous quotations of prices on sales of grain.” See id. at 245, 25 S.Ct. 637. There the Supreme Court held, “plaintiffs collection of quotations is entitled to the protection of the law. It stands like a trade secret. The plaintiff has the right to keep the work which it has done, or paid for doing, to itself.... The plaintiff does not lose its rights by communicating the result to persons, even if many, in confidential relations to itself, under a contract not to make it public.” Id. at 250, 25 S.Ct. 637. The Supreme Court further stated, “[tjime is of the essence in matters like this ... if the contracts with the plaintiff are kept, the information will not become public property until the plaintiff has gained its reward. A priority of a few minutes probably is enough.” Id. at 251, 25 S.Ct. 637.

In Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750 (1926), plaintiff sought an injunction forcing defendant to furnish plaintiff with a ticker and a declaration that defendant was a monopolist. See id. at 603, 46 S.Ct. 367. The Supreme Court held that the allegations did not support a claim under the Sherman Act and refused to grant the injunction. See id. at 603-05, 46 S.Ct. 367. The Supreme Court reiterated the holding of the Christie Court that the exchange had a property right in the information “which relates solely to its own business upon its own property.” Id. at 606-07, 46 S.Ct. 367. Further, the exchange was able to determine to whom it will sell: “the ordinary right of a private vendor of news or other property.” Id. at 605, 46 S.Ct. 367. Accordingly, the Court found that the exchange’s actions were appropriate and legitimate to protect and to further its