658 F.3d 614
7th Cir.2011Background
- WIAA sponsors Wisconsin high school tournaments and licenses streaming; in 2005 it contracted with American-HiFi for exclusive online streaming of most games; other media may stream only with consent and for a fee.
- Gannett newspapers streamed four playoff games without consent or payment, prompting WIAA to file a declaratory judgment in state court.
- Gannett removed the case to federal court; the district court granted summary judgment for WIAA.
- Gannett asserted federal First Amendment and Equal Protection claims and a Copyright Act theory; WIAA amended its complaint to seek declarations of its rights.
- The district court held the Media Policies governed access, recognized exclusivity as appropriate, and granted WIAA summary judgment; on appeal, the issues centered on First Amendment implications of exclusive internet streaming and related policies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether WIAA’s exclusive internet streaming contract violates the First Amendment. | Gannett argues WIAA cannot enter exclusive streaming contracts as a state actor. | WIAA contends exclusive licenses are permissible, not a censorship or compelled speech. | No, the exclusive contract is constitutional. |
| Whether WIAA may charge fees for streams not broadcast by American-HiFi. | Gannett claims fees for residual streams improperly burden the press. | WIAA may monetize its transmission rights consistent with Zacchini and Forbes. | Fees for residual streams do not violate the First Amendment. |
| Whether WIAA’s discretion to grant or deny licenses is unconstitutional viewpoint discrimination. | Gannett argues potential viewpoint discrimination in licensing. | No evidence of viewpoint discrimination; exclusivity is not viewpoint-based. | Viewpoint neutrality not required; discretion consistent with First Amendment. |
| Whether newspapers have copyright in the games they streamed without consent. | Gannett seeks copyright protection for the streamed games. | Copyright ownership and preemption concerns are not central; declaratory relief sought. | Copyright is not the basis for federal jurisdiction; dispute resolved on First Amendment grounds. |
Key Cases Cited
- Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977) (distinguishes reporting from broadcasting an entire act; producer may charge for consent)
- Forbes v. Arkansas Educational Television Comm., 523 U.S. 666 (1998) (editorial judgment in broadcasting not subject to viewpoint neutrality)
- Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (exclusive contracts in proprietary government ventures are permissible)
- Ayres v. City of Chicago, 125 F.3d 1010 (1997) (exclusive licenses can be revenue-generating and lawful)
- Home Box Office, Inc. v. FCC, 587 F.2d 1248 (D.C. Cir. 1978) (recognizes value of exclusive licensing in entertainment)
- City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750 (1988) (parade permits and government discretion; distinguishing licensing context)
- Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011) (discussed as federal question context in First Amendment analysis)