A federal appeals court threw out an injunction Jan. 30, 1997 that blocked Motorola Inc. and STATS, Inc. from transmitting updated scores and statistics from National Basketball Association games in progress over handheld pagers. The NBA claimed it owned the rights to scores and statistics until games were over.

 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

Nos. 822, 824 

August Term, 1996 

(Argued: October 21, 1996 Decided: Jan. 30, 1997 Docket 
Nos. 96-7975, 96-7983(CON), 96-9123(XAP)  

THE NATIONAL BASKETBALL ASSOCIATION and 
NBA PROPERTIES, INC., Plaintiff-Counter-Defendant-
Appellee-Cross-  Appellant,  

v. 

MOTOROLA, INC. doing business as Sports Trax, 
Defendant-Counter-  Claimant-Appellant-Cross-Appellee,  

SPORTS TEAM ANALYSIS AND TRACKING 
SYSTEMS, INC. doing business as STATS, Inc., 
Defendant-Appellant-Cross-Appellant-Cross-  Appellee.  

Before: VAN GRAAFEILAND, WINTER, and 
ALTIMARI, Circuit Judges.  

Motorola and Sports Team Analysis and Tracking Systems 
("STATS") appeal from a permanent injunction entered by 
the United States District Court for the Southern District of 
New York (Loretta A. Preska, Judge) barring, inter alia, the 
sale of a handheld pager that displays updated scores and 
statistics of National Basketball Association games as they 
are played.  

The NBA and NBA Properties, Inc. cross-appeal from the 
district court's dismissal of its Lanham Act claim. We hold 
that Motorola and STATS have not unlawfully 
misappropriated NBA's property by transmitting "real-
time" NBA game scores and statistics taken from television 
and radio broadcasts of games in progress. We therefore 
reverse on the misappropriation claim and vacate the 
injunction. On the cross-appeal, we affirm.  

JEFFREY A. MISHKIN, The National Basketball 
Association and NBA Properties, Inc., New York, New 
York (Kathryn L. Barrett, Richard W. Buchanan, of 
counsel; Roger L. Zissu, Mark D. Engelmann, Raphael 
Winick, Weiss Dawid Fross Zelnick & Lehrman, of 
counsel), for Plaintiff-  Counter-Defendant Appellee-Cross-
Appellant.  

HERBERT F. SCHWARTZ, Fish & Neave, New York, 
New York (Patricia A. Martone, Vincent N. Palladino, of 
counsel; Roger H. Dusberger, Motorola, Inc., of counsel), 
for Defendant -Counter-Claimant-  Appellant-Cross-
Appellee.  

ANDREW L. DEUTSCH, Piper & Marbury, New York, 
New York (Edward F. Malaf, of counsel; Paul M. Levy, 
Alan D. Leib, Deutsch Levy & Engel Chartered, Chicago, 
Illinois, of counsel), for Defendant-  Appellant-Cross-
Appellee.  

Bruce P. Keller, Debevoise & Plimpton, New York, New 
York (Lorin L. Reisner, of counsel), for Amici Curiae 
National Football League. Office of the Commissioner of 
Baseball and National Hockey League.  

Floyd Abrams, Cahill Gordon & Reindel, New York, New 
York, for Amicus Curiae Interactive Services Association.  

George Freeman, The New York Times Company, New 
York, New York, for Amicus Curiae The New York Times 
Company.  

Susan E. Weiner, National Broadcasting Company, Inc., 
New York, New York (Michael K. Kellogg, Austin C. 
Schlick, Kellogg, Huber, Hansen, Todd & Evans, 
Washington, D.C., of counsel), for Amicus Curiae National 
Broadcasting Company, Inc.  

Lee A. Freeman, Jr., Freeman, Freeman & Salzman, 
Chicago, Illinois (Jerrold E. Salzman, Chris C. Gair, of 
counsel), for Amicus Curiae Chicago Mercantile Exchange.  

WINTER, Circuit Judge: 

Motorola, Inc. and Sports Team Analysis and Tracking 
Systems ("STATS") appeal from a permanent injunction 
entered by Judge Preska. The injunction concerns a 
handheld pager sold by Motorola and marketed under the 
name "SportsTrax," which displays updated information of 
professional basketball games in progress. The injunction 
prohibits appellants, absent authorization from the National 
Basketball Association and NBA Properties, Inc. 
(collectively the "NBA"), from transmitting scores or other 
data about NBA games in progress via the pagers, STATS's 
site on America On-Line's computer dial-up service, or 
"any equivalent means."  

The crux of the dispute concerns the extent to which a state 
law "hot-  news" misappropriation claim based on 
International News Service v. Associated Press, 248 U.S. 
215 (1918) ("INS"), survives preemption by the federal 
Copyright Act and whether the NBA's claim fits within the 
surviving INS-type claims. We hold that a narrow "hot-
news" exception does survive preemption. However, we 
also hold that appellants' transmission of "realtime" NBA 
game scores and information tabulated from television and 
radio broadcasts of games in progress does not constitute a 
misappropriation of "hot news" that is the property of the 
NBA.  

The NBA cross-appeals from the dismissal of its Lanham 
Act claim. We hold that any misstatements by Motorola in 
advertising its pager were not material and affirm.  

I. BACKGROUND 

The facts are largely undisputed. Motorola manufactures 
and markets the SportsTrax paging device while STATS 
supplies the game information that is transmitted to the 
pagers. The product became available to the public in 
January 1996, at a retail price of about $200. SportsTrax's 
pager has an inch-and-a-half by inch-and-a-half screen and 
operates in four basic modes: "current," "statistics," "final 
scores" and "demonstration." It is the "current" mode that 
gives rise to the present dispute.1/ In that mode, SportsTrax 
displays the following information on NBA games in 
progress: (i) the teams playing; (ii) score changes; (iii) the 
team in possession of the ball; (iv) whether the team is in 
the free-throw bonus; (v) the quarter of the game; and (vi) 
time remaining in the quarter. The information is updated 
every two to three minutes, with more frequent updates 
near the end of the first half and the end of the game. There 
is a lag of approximately two or three minutes between 
events in the game itself and when the information appears 
on the pager screen.  

SportsTrax's operation relies on a "data feed" supplied by 
STATS reporters who watch the games on television or 
listen to them on the radio.  

The reporters key into a personal computer changes in the 
score and other information such as successful and missed 
shots, fouls, and clock updates. The information is relayed 
by modem to STATS's host computer, which compiles, 
analyzes, and formats the data for retransmission. The 
information is then sent to a common carrier, which then 
sends it via satellite to various local FM radio networks that 
in turn emit the signal received by the individual 
SportsTrax pagers.  

Although the NBA's complaint concerned only the 
SportsTrax device, the NBA offered evidence at trial 
concerning STATS's America On-Line ("AOL") site. 
Starting in January, 1996, users who accessed STATS's 
AOL site, typically via a modem attached to a home 
computer, were provided with slightly more comprehensive 
and detailed real-time game information than is displayed 
on a SportsTrax pager. On the AOL site, game scores are 
updated every 15 seconds to a minute, and the player and 
team statistics are updated each minute. The district court's 
original decision and judgment, National Basketball Ass'n 
v. Sports Team Analysis and Tracking Sys. Inc., 931 F. 
Supp. 1124 (S.D.N.Y. 1996), did not address the AOL site, 
because "NBA's complaint and the evidence proffered at 
trial were devoted largely to SportsTrax." National 
Basketball Ass'n v. Sports Team Analysis and Tracking 
Sys. Inc., 939 F. Supp. 1071, 1074 n.1 (S.D.N.Y. 1996). 
Upon motion by the NBA, however, the district court 
amended its decision and judgment and enjoined use of the 
real-time game information on STATS's AOL site. Id. at 
1075 n.1. Because the record on appeal, the briefs of the 
parties, and oral argument primarily addressed the 
SportsTrax device, we similarly focus on that product.  

However, we regard the legal issues as identical with 
respect to both products, and our holding applies equally to 
SportsTrax and STATS's AOL site.  

The NBA's complaint asserted six claims for relief: (i) state 
law unfair competition by misappropriation; (ii) false 
advertising under Section 43(a) of the Lanham Act, 15 
U.S.C. Sec. 1125(a); (iii) false representation of origin 
under Section 43(a) of the Lanham Act; (iv) state and 
common law unfair competition by false advertising and 
false designation of origin; (v) federal copyright 
infringement; and (vi) unlawful interception of 
communications under the Communications Act of 1934, 
47 U.S.C. Sec. 605. Motorola counterclaimed, alleging that 
the NBA unlawfully interfered with Motorola's contractual 
relation" with four individual NBA teams that had agreed 
to sponsor and advertise SportsTrax.  

The district court dismissed all of the NBA's claims except 
the first -- misappropriation under New York law. The 
court also dismissed Motorola's counterclaim. Finding 
Motorola and STATS liable for misappropriation, Judge 
Preska entered the permanent injunction,2/ reserved the 
calculation of damages for subsequent proceedings, and 
stayed execution of the in junction pending appeal. 
Motorola and STATS appeal from the injunction, while 
NBA cross-appeals from the district court's dismissal of its 
Lanham Act false-advertising claim. The issues before us, 
therefore, are the state law misappropriation and Lanham 
Act claims.  

II. THE STATE LAW MISAPPROPRIATION CLAIM  

A.  Summary of Ruling  Because our disposition of the 
state law misappropriation claim rests in large part on 
preemption by the Copyright Act, our discussion 
necessarily goes beyond the elements of a misappropriation 
claim under New York law, and a summary of our ruling 
here will perhaps render that discussion -  - or at least the 
need for it -- more understandable.  

The issues before us are ones that have arisen in various 
forms over the course of this century as technology has 
steadily increased the speed and quantity of information 
transmission. Today, individuals at home, at work, or 
elsewhere, can use a computer, pager, or other device to 
obtain highly selective kinds of information virtually at 
will. International News Service v. Associated Press, 248 
U.S. 215 (1918) ("INS") was one of the first cases to 
address the issues raised by these technological advances, 
although the technology involved in that case was primitive 
by contemporary standards. INS involved two wire 
services, the Associated Press ("AP") and International 
News Service ("INS"), that transmitted newsstories by wire 
to member newspapers. Id. INS would lift factual stories 
from AP bulletins and send them by wire to INS papers. Id. 
at 231.  

INS would also take factual stories from east coast AP 
papers and wire them to INS papers on the west coast that 
had yet to publish because of time differentials. Id. at 238. 
The Supreme Court held that INS's conduct was a 
common-law misappropriation of AP's property. Id. at 242.  

With the advance of technology, radio stations began "live" 
broadcasts of events such as baseball games and operas, 
and various entrepreneurs began to use the transmissions of 
others in one way or another for their own profit. In 
response, New York courts created a body of 
misappropriation law, loosely based on INS, that sought to 
apply ethical standards to the use by one party of another's 
transmissions of events.  

Federal copyright law played little active role in this area 
until 1976. Before then, it appears to have been the general 
understanding -- there being no caselaw of consequence -- 
that live events such as baseball games were not 
copyrightable. Moreover, doubt existed even as to whether 
a recorded broadcast or videotape of such an event was 
copyrightable. In 1976, however, Congress passed 
legislation expressly affording copyright protection to 
simultaneously-recorded broadcasts of live performances 
such as sports events. See 17 U.S.C. Sec. 101. Such 
protection was not extended to the underlying events.  

The 1976 amendments also contained provisions 
preempting state law claims that enforced rights 
"equivalent" to exclusive copyright protections when the 
work to which the state claim was being applied fell within 
the area of copyright protection. See 17 U.S.C. Sec. 301. 
Based on legislative history of the 1976 amendments, it is 
generally agreed that a "hot-news" INS-like claim survives 
preemption. H.R. No. 94-1476 at 132 (1976), reprinted in 
1976 U.S.C.C.A.N. 5659, 5748. However, much of New 
York misappropriation law after INS goes well beyond 
"hot-news" claims and is preempted.  

We hold that the surviving "hot-news" INS-like claim is 
limited to cases where: (i) a plaintiff generates or gathers 
information at a cost; (ii) the information is time-sensitive; 
(iii) a defendant's use of the information constitutes 
freeriding on the plaintiff's efforts; (iv) the defendant is in 
direct competition with a product or service offered by the 
plaintiffs; and (v) the ability of other parties to free-ride on 
the efforts of the plaintiff or others would so reduce the 
incentive to produce the product or service that its existence 
or quality would be substantially threatened. We conclude 
that SportsTrax does not meet that test.  

B. Copyrights in Events or Broadcasts of Events The NBA 
asserted copyright infringement claims with regard both to 
the underlying games and to their broadcasts. The district 
court dismissed these claims, and the NBA does not appeal 
from their dismissal. Nevertheless, discussion of the 
infringement claims is necessary to provide the framework 
for analyzing the viability of the NBA's state law 
misappropriation claim in light of the Copyright Act's 
preemptive effect.  

1. Infringement of a Copyright in the Underlying Games  

In our view, the underlying basketball games do not fall 
within the subject matter of federal copyright protection 
because they do not constitute "original works of 
authorship" under 17 U.S.C. Sec. 102(a). Section 102(a) 
lists eight categories of "works of authorship" covered by 
the act, including such categories as "literary works," 
"musical works," and "dramatic works."3/ The list does not 
include athletic events, and, although the list is concededly 
non-exclusive, such events are neither similar nor 
analogous to any of the listed categories.  

Sports events are not "authored" in any common sense of 
the word. There is, of course, at least at the professional 
level, considerable preparation for a game. However, the 
preparation is as much an expression of hope or faith as a 
determination of what will actually happen. Unlike movies, 
plays, television programs, or operas, athletic events are 
competitive and have no underlying script. Preparation may 
even cause mistakes to succeed, like the broken play in 
football that gains yardage because the opposition could not 
expect it. Athletic events may also result in wholly 
unanticipated occurrences, the most notable recent event 
being in a championship baseball game in which 
interference with a fly ball caused an umpire to signal 
erroneously a home run.  

What "authorship" there is in a sports event, moreover, 
must be open to copying by competitors if fans are to be 
attracted. If the inventor of the T-  formation in football had 
been able to copyright it, the sport might have come to an 
end instead of prospering. Even where athletic preparation 
most resembles authorship -- figure skating, gymnastics, 
and, some would uncharitably say, professional wrestling -- 
a performer who conceives and executes a particularly 
graceful and difficult or, in the case of wrestling, seemingly 
painful -- acrobatic feat cannot copyright it without 
impairing the underlying competition in the future. A claim 
of being the only athlete to perform a feat doesn't mean 
much if no one else is allowed to try.  

For many of these reasons, Nimmer on Copyright 
concludes that the "[f]ar more reasonable" position is that 
athletic events are not copyrightable. 1 M. Nimmer & D. 
Nimmer, Nimmer on Copyright Sec. 2.09[F] at 2-170.1 
(1996). Nimmer notes that, among other problems, the 
number of joint copyright owners would arguably include 
the league, the teams, the athletes, umpires, stadium 
workers and even fans, who all contribute to the "work."  

Concededly, caselaw is scarce on the issue of whether 
organized events themselves are copyrightable, but what 
there is indicates that they are not.  

See Prod. Contractors Inc. v. WGN Continental Broad. Co., 
622 F. Supp. 1500 (N.D. Ill. 1985) (Christmas parade is not 
a work of authorship entitled to copyright protection). In 
claiming a copyright in the underlying games, the NBA 
relied in part on a footnote in Baltimore Orioles. Inc. v. 
Major League Baseball Player's Assn., 805 F.2d 663, 669 
n.7 (7th Cir. 1986), cert. denied, 480 U.S. 941 (1987), 
which stated that the "[p]layers' performances" contain the 
"modest creativity required for  copyrightability."  
However, the court went on to state, "Moreover, even if the 
[p]layers'  performances were not sufficiently creative, the 
[P]layers agree that  the cameramen and director contribute 
creative labor to the telecasts." Id. This last sentence 
indicates that the court was considering the copyrightability 
of telecasts -- not the underlying games, which obviously 
can be played without cameras.  

We believe that the lack of caselaw is attributable to a 
general understanding that athletic events.were, and are, 
uncopyrightable. Indeed, prior to 1976, there was even 
doubt that broadcasts describing or depicting such events, 
which have a far stronger case for copyrightability than the 
events themselves, were entitled to copyright protection. 
Indeed, as described in the next subsection of this opinion, 
Congress found it necessary to extend such protection to 
recorded broadcasts of live events. The fact that Congress 
did not extend such protection to the events themselves 
confirms our view that the district court correctly held that 
appellants were not infringing a copyright in the NBA 
games.  

2. Infringement of a Copyright in the Broadcasts of NBA 
Games As noted, recorded broadcasts of NBA games -- as 
opposed to the games themselves -- are now entitled to 
copyright protection. The Copyright Act was amended in 
1976 specifically to insure that simultaneously-recorded 
transmissions of live performances and sporting events 
would meet the Act's requirement that the original work of 
authorship be "fixed in any tangible medium of 
expression." 17 U.S.C. Sec. 102(a). Accordingly, Section 
101 of the Act, containing definitions, was amended to 
read:  

A work consisting of sounds, images, or both, that are 
being transmitted, is "fixed" for purposes of this title if a 
fixation of the work is being made simultaneously with its 
transmission.  

17 U.S.C. Sec. 101. Congress specifically had sporting 
events in mind: [T]he bill seeks to resolve, through the 
definition of "fixation" in section 101, the status of live 
broadcasts -- sports, news coverage, live performances of 
music, etc. -- that are reaching the public in unfixed form 
but that are simultaneously being recorded.  

H.R. No. 94-1476 at 52, reprinted in 1976 U.S.C.C.A.N. at 
5665. The House Report also makes clear that it is the 
broadcast, not the underlying game, that is the subject of 
copyright protection. In explaining how game broadcasts 
meet the Act's requirement that the subject matter be an 
"original work [] of authorship," 17 U.S.C. Sec. 102(a), the 
House Report stated:  

When a football game is being covered by four television 
cameras, with a director guiding the activities of the four 
cameramen and choosing which of their electronic images 
are sent out to the public and in what order, there is little 
doubt that what the cameramen and the director are doing 
constitutes "authorship."

H.R. No. 94-1476 at 52, reprinted in 1976 U.S.C.C.A.N. at 
5665. Although the broadcasts are protected under 
copyright law, the district court correctly held that 
Motorola and STATS did not infringe NBA's copyright 
because they reproduced only facts from the broadcasts, not 
the expression or description of the game that constitutes 
the broadcast. The "fact/expression dichotomy" is a 
bedrock principle of copyright law that "limits severely the 
scope of protection in fact-based works." Feist 
Publications, Inc. v. Rural Tel. Service Co., 499 U.S. 340, 
350 (1991).  

"'No author may copyright facts or ideas. The copyright is 
limited to those aspects of the work -- termed 'expression' -- 
that display the stamp of the author's originality."' Id. 
(quoting Harper & Row. Inc. v. Nation Enter., 471 U.S. 
539, 547-48 (1985)).  

We agree with the district court that the "[d]efendants 
provide purely factual information which any patron of an 
NBA game could acquire from the arena without any 
involvement from the director, cameramen, or others who 
contribute to the originality of a broadcast." 939 F. Supp. at 
1094.  

Because the SportsTrax device and AOL site reproduce 
only factual information culled from the broadcasts and 
none of the copyrightable expression of the games, 
appellants did not infringe the copyright of the broadcasts.  

C. The State-Law Misappropriation Claim  The district 
court's injunction was based on its conclusion that, under 
New York law, defendants had unlawfully misappropriated 
the NBA's property rights in its games. The district court 
reached this conclusion by holding: (i) that the NBA's 
misappropriation claim relating to the underlying games 
was not preempted by Section 301 of the Copyright Act; 
and (ii) that, under New York common law, defendants had 
engaged in unlawful misappropriation. Id. at 1094-1107. 
We disagree.  

1. Preemption Under the Copyright Act  a) Summary  
When Congress amended the Copyright Act in 1976, it 
provided for the preemption of state law claims that are 
interrelated with copyright claims in certain ways. Under 
17 U.S.C. Sec. 301, a state law claim is preempted when: 
(i) the state law claim seeks to vindicate "legal or equitable 
rights that are equivalent" to one of the bundle of exclusive 
rights already protected by copyright law under 17 U.S.C. 
Sec. 106 -- styled the "general scope requirement"; and (ii) 
the particular work to which the state law claim is being 
applied falls within the type of works protected by the 
Copyright Act under Sections 102 and 103 -- styled the 
"subject matter requirement."4/  

The district court concluded that the NBA's 
misappropriation claim was not preempted because, with 
respect to the underlying games, as opposed to the 
broadcasts, the subject matter requirement was not met. 939 
F. Supp. at 1097. The court dubbed as "partial preemption" 
its separate analysis of misappropriation claims relating to 
the underlying games and misappropriation claims relating 
to broadcasts of those games. Id. at 1098, n.24. The district 
court then relied on a series of older New York 
misappropriation cases involving radio broadcasts that 
considerably broadened INS. We hold that where the 
challenged copying or misappropriation relates in part to 
the copyrighted broadcasts of the games, the subject matter 
requirement is met as to both the broadcasts and the games. 
We therefore reject the partial preemption doctrine and its 
anomalous consequence that "it is possible for a plaintiff to 
assert claims both for infringement of its copyright in a 
broadcast and misappropriation of its rights in the 
underlying event." Id. We do find that a properly- narrowed 
INS "hot-news" misappropriation claim survives 
preemption because it fails the general scope requirement, 
but that the broader theory of the radio broadcast cases 
relied upon by the district court were preempted when 
Congress extended copyright protection to simultaneously-
recorded broadcasts.  

b) "Partial Preemption" and the Subject Matter 
Requirement The subject matter requirement is met when 
the work of authorship being copied or misappropriated 
"fall[s] within the ambit of copyright protection." Harper & 
Row Inc. v. Nation Enter., 723 F.2d 195, 200 (1983), rev'd 
on other grounds, 471 U.S. 539 (1985). We believe that the 
subject matter requirement is met in the instant matter and 
that the concept of "partial preemption" is not consistent 
with Section 301 of the Copyright Act. Although game 
broadcasts are copyrightable while the underlying games 
are not, the Copyright Act should not be read to distinguish 
between the two when analyzing the preemption of a 
misappropriation claim based on copying or taking from 
the copyrightable work. We believe that:  

[O]nce a performance is reduced to tangible form, there is 
no distinction between the performance and the recording 
of the performance for the purposes of preemption under 
Sec. 301(a). Thus, if a baseball game were not broadcast or 
were telecast without being recorded, the Players' 
performances similarly would not be fixed in tangible form 
and their rights of publicity would not be subject to 
preemption. By virtue of being videotaped, however, the 
Players' performances are fixed in tangible form, and any 
rights of publicity in their performances that are equivalent 
to the rights contained in the copyright of the telecast are 
preempted.  

Baltimore Orioles, 805 F.2d at 675 (citation omitted).  

Copyrightable material often contains uncopyrightable 
elements within it, but Section 301 preemption bars state 
law misappropriation claims with respect to 
uncopyrightable as well as copyrightable elements. In 
Harper & Row, for example, we held that state law claims 
based on the copying of excerpts from President Ford's 
memoirs were preempted every with respect to information 
that was purely factual and not copyrightable. We stated:  

[T]he "Copyright] Act clearly embraces "works of 
authorship," including "literary works," as within its subject 
matter. The fact that portions of the Ford memoirs may 
consist of uncopyrightable material . . . does not take the 
work as a whole outside the subject matter protected by the 
Act. Were this not so, states would be free to expand the 
perimeters of copyright protection to their own liking, on 
the theory that preemption would be no bar to state 
protection of material not meeting federal statutory 
standards.  

723 F.2d at 200 (citation omitted). The legislative history 
supports this understanding of Section 301(a)'s subject 
matter requirement. The House Report stated:  

As long as a work fits within one of the general subject 
matter categories of sections 102 and 103, the bill prevents 
the States from protecting it even if it fails to achieve 
Federal statutory copyright because it is too minimal or 
lacking in originality to qualify, or because it has fallen into 
the public domain.  

H.R. No. 94-1476 at 131, reprinted in 1976 U.S.C.C.A.N. 
at 5747. See also Baltimore Orioles, 805 F.2d at 676 (citing 
excerpts of House Report 94-1476).  

Adoption of a partial preemption doctrine -- preemption of 
claims based on misappropriation of broadcasts but no 
preemption of claims based on misappropriation of 
underlying facts -- would expand significantly the reach of 
state law claims and render the preemption intended by 
Congress unworkable. It is often difficult or impossible to 
separate the fixed copyrightable work from the underlying 
uncopyrightable events or facts.  

Moreover, Congress, in extending copyright protection 
only to the broadcasts and not to the underlying events, 
intended that the latter be in the public domain. Partial 
preemption turns that intent on its head by allowing state 
law to vest exclusive rights in material that Congress 
intended to be in the public domain and to make unlawful 
conduct that Congress intended to allow. This concern was 
recently expressed in ProCD, Inc. v. Zeidenberg, 86 F.3d 
1447 (7th Cir. 1996), a case in which the defendants 
reproduced non-copyrightable facts (telephone listings) 
from plaintiffs' copyrighted software. In discussing 
preemption under Section 301(a), Judge Easterbrook held 
that the subject matter requirement was met and noted:  

ProCD's software and data are "fixed in a tangible medium 
of expression", and the district judge held that they are 
"within the subject matter of copyright". The latter 
conclusion is plainly right for the copyrighted application 
program, and the judge thought that the data likewise are 
"within the subject matter of copyright" even if, after Feist, 
they are not sufficiently original to be copyrighted. 908 
F.Supp. at 656-57. Baltimore Orioles. Inc. v. Major League 
Baseball Players Ass'n, 805 F.2d 663, 676 (7th Cir. 1986), 
supports that conclusion, with which commentators agree. . 
. . One function of Sec. 301(a) is to prevent states from 
giving special protection to works of authorship that 
Congress has decided should be in the public domain, 
which it can accomplish only if "subject matter of 
copyright" includes all works of a type covered by sections 
102 and 103, even if federal law does not afford protection 
to them.  

ProCD, 86 F.3d at 1453 (citation omitted). We agree with 
Judge Easterbrook and reject the separate analysis of the 
underlying games and broadcasts of those games for 
purposes of preemption.  

c) The General Scope Requirement 

Under the general scope requirement, Section 301 
"preempts only those state law rights that 'may be abridged 
by an act which, in and of itself, would infringe one of the 
exclusive rights' provided by federal copyright law." 
Computer Assoc. Int'l. Inc. v. Altai, Inc., 982 F.2d 693, 716 
(2d Cir. 1992) (quoting Harper & Row, 723 F.2d at 200). 
However, certain forms of commercial misappropriation 
otherwise within the general scope requirement will survive 
preemption if an "extra-element" test is met. As stated in 
Altai:  

But if an "extra element" is "required instead of or in 
addition to the acts of reproduction, performance, 
distribution or display, in order to constitute a state-created 
cause of action, then the right does not lie 'within the 
general scope of copyright,' and there is no preemption."  

Id. (quoting 1 Nimmer on Copyright Sec. 1.01[B] at 1-15). 
ProCD was in part an application of the extra-element test. 
Having held the misappropriation claims to be preempted, 
Judge Easterbrook went on to hold that the plaintiffs could 
bring a state law contract claim. The court held that the 
defendants were bound by the software's shrink-wrap 
licenses as a matter of contract law and that the private 
contract rights were not preempted because they were not 
equivalent to the exclusive rights granted by copyright law. 
In other words, the contract right claims were not 
preempted because the general scope requirement was not 
met. ProCD, 86 F.3d at 1455.  

We turn, therefore, to the question of the extent to which a 
"hot-news" misappropriation claim based on INS involves 
extra elements and is not the equivalent of exclusive rights 
under a copyright. Courts are generally agreed that some 
form of such a claim survives preemption. Financial 
Information. Inc. v. Moody's Investors Service. Inc., 808 
F.2d 204, 208 (2d Cir. 1986), cert. denied, 484 U.S. 820 
(1987) ("FII"). This conclusion is based in part on the 
legislative history of the 1976 amendments. The House 
Report stated:  

"Misappropriation" is not necessarily synonymous with 
copyright infringement, and thus a cause of action labeled 
as "misappropriation" is not preempted if it is in fact based 
neither on a right within the general scope of copyright as 
specified by section 106 nor on a right equivalent thereto. 
For example, state law should have the flexibility to afford 
a remedy (under traditional principles of equity) against a 
consistent pattern of unauthorized appropriation by a 
competitor of the facts (i.e., not the literary expression) 
constituting "hot" news, whether in the traditional mold of 
International News Service v. Associated Press, 248 U.S. 
215 (1918), or in the newer form of data updates from 
scientific, business, or financial data bases.  

H.R. No. 94-1476 at 132, reprinted in 1976 U.S.C.C.A.N. 
at 5748 (footnote omitted),5/ see also FII, 808 F.2d at 209 
("'misappropriation' of 'hot' news, under International News 
Service, [is] a branch of the unfair competition doctrine not 
preempted by the Copyright Act according to the House 
Report") (citation omitted)). The crucial question, therefore, 
is the breadth of the "hot-news" claim that survives 
preemption.  

In INS, the plaintiff AP and defendant INS were "wire 
services" that sold news items to client newspapers. AP 
brought suit to prevent INS from selling facts and 
information lifted from AP sources to INS-affiliated 
newspapers. One method by which INS was able to use 
AP's news was to lift facts from AP news bulletins. INS, 
248 U.S. at 231. Another method was to sell facts taken 
from just-published east coast AP newspapers to west coast 
INS newspapers whose editions had yet to appear. Id. at 
238. The Supreme Court held (prior to Erie R. Co. v. 
Tompkins, 304 U.S. 64 (1938)), that INS's use of AP's 
information was unlawful under federal common law. It 
characterized INS's conduct as amount[ing] to an 
unauthorized interference with the normal operation of 
complainant's legitimate business precisely at the point 
where the profit is to be reaped, in order to divert a material 
portion of the profit from those who have earned it to those 
who have not; with special advantage to defendant in the 
competition because of the fact that it is not burdened with 
any part of the expense of gathering the news.  

INS, 248 U.S. at 240.  The theory of the New York 
misappropriation cases relied upon by the district court is 
considerably broader than that of INS. For example, the 
district court quoted at length from Metropolitan Opera 
Ass'n v. Wagner-  Nichols Recorder Corp., 101 N.Y.S.2d 
483 (N.Y. Sup. Ct. 1950), aff'd, 107 N.Y.S.2d 795 (1st 
Dep't 1951). Metropolitan Opera described New York 
misappropriation law as standing for the "broader principle 
that property rights of commercial value are to be and will 
be protected from any form of commercial immorality"; 
that misappropriation law developed "to deal with business 
malpractices offensive to the ethics of [ ] society"; and that 
the doctrine is "broad and flexible." 939 F. Supp. at 1098-
1110 (quoting Metropolitan Opera, 101 N.Y.S.2d at 492, 
488-89).  

However, we believe that Metropolitan Opera's broad 
misappropriation doctrine based on amorphous concepts 
such as "commercial immorality" or society's "ethics" is 
preempted. Such concepts are virtually synonymous for 
wrongful copying and are in no meaningful fashion 
distinguishable from infringement of a copyright. The 
broad misappropriation doctrine relied upon by the district 
court is, therefore, the equivalent of exclusive rights in 
copyright law.  

Indeed, we said as much in FII. That decision involved the 
copying of financial information by a rival financial 
reporting service and specifically repudiated the broad 
misappropriation doctrine of Metropolitan Opera. We 
explained:  

We are not persuaded by FII's argument that 
misappropriation is not "equivalent" to the exclusive rights 
provided by the Copyright Act . . . . Nor do we believe that 
a possible exception to the general rule of preemption in the 
misappropriation area -- for claims involving "any form of 
commercial immorality,". . . quoting Metropolitan Opera 
Ass'n v. Wagner-Nichols Recorder Corp., 199 Misc. 786, 
101 N.Y.S.2d 483, . . . --  should be applied here. We 
believe that no such exception exists and reject its use here. 
Whether or not reproduction of another's work is "immoral" 
depends on whether such use of the work is wrongful. If, 
for example, the work is in the public domain, then its use 
would not be wrongful.  

Likewise, if, as here, the work is unprotected by federal law 
because of lack of originality, then its use is neither unfair 
nor unjustified.  

FII, 808 F.2d at 208. In fact, FII only  begrudgingly-
concedes that even narrow "hot news" INS-type claims 
survive preemption. Id. at 209.   Moreover, Computer 
Associates Intern., Inc. v. Altai Inc. indicated that the "extra 
element" test should not be applied so as to allow state 
claims to survive preemption easily. 982 F.2d at 717. "An 
action will not be saved from preemption by elements such 
as awareness or intent, which alter 'the action's scope but 
not its nature' . . . . Following this 'extra element' test, we 
have held that unfair competition and misappropriation 
claims grounded solely in the copying of a plaintiff's 
protected expression are preempted by section 301." Id. 
(citation omitted).  

In light of cases such as FII and Altai that emphasize the 
narrowness of state misappropriation claims that survive 
preemption, most of the broadcast cases relied upon by the 
NBA are simply not good law. Those cases were decided at 
a time when simultaneously-recorded broadcasts were not 
protected under the Copyright Act and when the state law 
claims they fashioned were not subject to federal 
preemption. For example, Metropolitan Opera, 101 
N.Y.S.2d 483, involved the unauthorized copying, 
marketing, and sale of opera radio broadcasts. As another 
example, in Mutual Broadcasting System v. Muzak Corp., 
30 N.Y.S.2d 419 (Sup. Ct. 1941), the defendant 
simultaneously retransmitted the plaintiff's baseball radio 
broadcasts onto telephone lines. As discussed above, the 
1976 amendments to the Copyright Act were specifically 
designed to afford copyright protection to simultaneously-
recorded broadcasts, and Metropolitan Opera and Muzak 
could today be brought as copyright infringement cases. 
Moreover, we believe that they would have to be brought as 
copyright cases because the amendments affording 
broadcasts copyright protection also preempted the state 
law misappropriation claims under which they were 
decided.  

Our conclusion, therefore, is that only a narrow "hot-news" 
misappropriation claim survives preemption for actions 
concerning material within the realm of copyright.6/ See 
also 1 McCarthy on Trademarks and Unfair Competition 
(4th ed. 1996), Sec. 10:69, at 10134 (discussing National 
Exhibition Co. v. Fass, 133 N.Y.S.2d 379 (Sup. Ct. 1954), 
Muzak, 30 N.Y.S.2d 419, and other cases relied upon by 
NBA that pre-date the 1976 amendment to the Copyright 
Act and concluding that after the amendment, "state 
misappropriation law would be unnecessary and would be 
preempted: protection is solely under federal copyright").7/  

In our view, the elements central to an INS claim are: (i) 
the plaintiff generates or collects information at some cost 
or expense, see FII, 808 F.2d at 206; INS, 248 U.S. at 240; 
(ii) the value of the information is highly time-sensitive, see 
FII, 808 F.2d at 209; INS, 248 U.S. at 231; Restatement 
(Third) Unfair Competition, Sec. 38 cmt. c.; (iii) the 
defendant's use of the information constitutes free-riding on 
the plaintiff's costly efforts to generate or collect it, see FII, 
808 F.2d at 207; INS, 248 U.S. at 239-40; Restatement Sec. 
38 at cmt. c.; McCarthy, Sec. 10:73 at 10-139; (iv) the 
defendant's use of the information is in direct competition 
with a product or service offered by the plaintiff, [[I, 808 
F.2d at 209, INS, 248 U.S. at 240; (v) the ability of other 
parties to free-ride on the efforts of the plaintiff would so 
reduce the incentive to produce the product or service that 
its existence or quality would be substantially -threatened, 
FII, 808 F.2d at 209; Restatement, Sec. 38 at cmt. c.; INS, 
248 U.S. at 241 ("[INS's conduct] would render [AP's] 
publication profitless, or so little profitable as in effect to 
cut off the service by rendering the cost prohibitive in 
comparison with the return.")8/  

INS is not about ethics; it is about the protection of 
property rights in time-  sensitive information so that the 
information will be made available to the public by 
profitseeking entrepreneurs. If services like AP were not 
assured of property rights in the news they pay to collect, 
they would cease to collect it. The ability of their 
competitors to appropriate their product at only nominal 
cost and thereby to disseminate a competing product at a 
lower price would destroy the incentive to collect news in 
the first place.  

The newspaper-reading public would suffer because no one 
would have an incentive to collect "hot news."  

We therefore find the extra elements -- those in addition to 
the elements of copyright infringement -- that allow a 
"hotnews" claim to survive preemption are: (i) the time-
sensitive value of factual information, (ii) the free-riding by 
a defendant, and (iii) the threat to the very existence of the 
product or service provided by the plaintiff.  

2. The Legality of SportsTrax 

We conclude that Motorola and STATS have not engaged 
in unlawful misappropriation under the "hot-news" test set 
out above. To be sure, some of the elements of a "hot-
news" INS-claim are met. The information transmitted to 
SportsTrax is not precisely contemporaneous, but it is 
nevertheless time-sensitive. Also, the NBA does provide, or 
will shortly do so, information like that available through 
SportsTrax. It now offers a service called "Gamestats" that 
provides official play-by-play game sheets and half-time 
and final box scores within each arena. It also provides 
such information to the media in each arena. In the future, 
the NBA plans to enhance Gamestats so that it will be 
networked between the various arenas and will support a 
pager product analogous to SportsTrax. SportsTrax will of 
course directly compete with an enhanced Gamestats.  

However, there are critical elements missing in the NBA's 
attempt to assert a "hot-news" INS-type claim. As framed 
by the NBA, their claim compresses and confuses three 
different informational products. The first product is 
generating the information by playing the games; the 
second product is transmitting live, full descriptions of 
those games; and the third product is collecting and 
retransmitting strictly factual information about the games. 
The first and second products are the NBA's primary 
business: producing basketball games for live attendance 
and licensing copyrighted broadcasts of those games. The 
collection and retransmission of strictly factual material 
about the games is a different product: e.g., box-scores in 
newspapers, summaries of statistics on television sports 
news, and real-  time facts to be transmitted to pagers. In 
our view, the NBA has failed to show any competitive 
effect whatsoever from SportsTrax on the first and second 
products and a lack of any free-riding by SportsTrax on the 
third.  

With regard to the NBA's primary products -- producing 
basketball games with live attendance and licensing 
copyrighted broadcasts of those games -- there is no 
evidence that anyone regards SportsTrax or the AOL site as 
a substitute for attending NBA games or watching them on 
television. In fact, Motorola markets SportsTrax as being 
designed "for those times when you cannot be at the arena, 
watch the game on TV, or listen to the radio . . ."  

The NBA argues that the pager market is also relevant to a 
"hot-news" INS-type claim and that SportsTrax's future 
competition with Gamestats satisfies any missing element. 
We agree that there is a separate market for the real-time 
transmission of factual information to pagers or similar 
devices, such as STATS's AOL site. However, we disagree 
that SportsTrax is in any sense free-riding off Gamestats.  

An indispensable element of an INS "hot-news" claim is 
freeriding by a defendant on a plaintiff's product, enabling 
the defendant to produce a directly competitive product for 
less money because it has lower costs.  

SportsTrax is not such a product. The use of pagers to 
transmit real-time information about NBA games requires: 
(i) the collecting of facts about the games; (ii) the 
transmission of these facts on a network; (iii) the 
assembling of them by the particular service; and (iv) the 
transmission of them to pagers or an on-line computer site. 
Appellants are in no way free-  riding on Gamestats. 
Motorola and STATS expend their own resources to collect 
purely factual information generated in NBA games to 
transmit to SportsTrax pagers. They have their own 
network and assemble and transmit data themselves.  

To be sure, if appellants in the future were to collect facts 
from an enhanced Gamestats pager to retransmit them to 
SportsTrax pagers, that would constitute free-riding and 
might well cause Gamestats to be unprofitable because it 
had to bear costs to collect facts that SportsTrax did not. If 
the appropriation of facts from one pager to another pager 
service were allowed, transmission of current information 
on NBA games to pagers or similar devices would be 
substantially deterred because any potential transmitter 
would know that the first entrant would quickly encounter a 
lower cost competitor free-riding on the originator's 
transmissions.9/  

However, that is not the case in the instant matter. 
SportsTrax and Gamestats are each bearing their own costs 
of collecting factual information on NBA games, and, if 
one produces a product that is cheaper or otherwise 
superior to the other, that producer will prevail in the 
marketplace. This is obviously not the situation against 
which INS was intended to prevent: the potential lack of 
any such product or service because of the anticipation of 
free-riding.  

For the foregoing reasons, the NBA has not shown any 
damage to any of its products based on free-riding by 
Motorola and STATS, and the NBA's misappropriation 
claim based on New York law is preempted.10/  

III. THE NBA'S CROSS-APPEAL  The NBA cross-
appeals from the district court's dismissal of its false 
advertising claim under Section 43(a) of the Lanham Act, 
15 U.S.C. Sec. 1125(a).[11/] This claim was based on a 
January 1996 Motorola press release stating that SportsTrax 
provides "updated game information direct from each 
arena" which "originate[s] from the press table in each 
arena" and on a statement appearing on the spine of the 
retail box and on the retail display stand that SportsTrax 
provides "game updates from the arena."  

NBA argues that because STATS reporters collect their 
information from television and radio broadcasts, the 
information is not "direct from each arena" or even "from 
the arena." Motorola responds that the statement about 
information coming from the press table was an isolated 
remark occurring only in that press release. It also claims 
that the assertion that the game updates come "from the 
arena" is not literally false, presumably because the factual 
information does originate in the arena.  

To establish a false advertising claim under Section 43(a), 
the plaintiff must demonstrate that the statement in the 
challenged advertisement is false. "Falsity may be 
established by proving that (1) the advertising is literally 
false as a factual matter, or (2) although the advertisement 
is literally true, it is likely to deceive or confuse 
customers." Lipton v. Nature Co., 71 F.3d 464, 474 (2d Cir. 
1995). However, in addition to proving falsity, the plaintiff 
"must also show that the defendants "misrepresented an 
'inherent quality or characteristic"' of the product.  

National Assoc. of Pharm. Mfrs. v. Ayerst Lab., 850 F.2d 
904, 917 (2d Cir. 1988) (quoting Vidal Sassoon, Inc. v. 
Bristol-Myers Co., 661 F.2d 272, 278 (2d Cir. 1981)). This 
requirement is essentially one of materiality, a term 
explicitly used in other circuits. See American Tel. & Tel. 
Co. v. Winback and Conserve Program. Inc., 42 F.3d 1421, 
1428 n. 9 (3d Cir. 1994) (plaintiff alleging false advertising 
must prove "that the deception is material in that it is likely 
to influence purchasing decisions") (citations and internal 
quotation marks omitted), cert. denied, 115 S. Ct. 1838 
(1995); ALPO Petfoods, Inc. v. Ralston Purina Co., 913 
F.2d 958, 964 (D.C. Cir. 1990) (false or misleading ads 
must be "material in their effects on buying decisions"); 
Taquino v. Teledyne Monarch Rubber, 893 F.2d 1488, 
1500 (5th Cir. 1990) (deception must be "material, in that it 
is likely to influence the purchasing decision"); see also 3 
McCarthy on Trademarks Sec. 27:35 at 27-54 (there must 
be "some showing that the defendant's misrepresentation 
was 'material' in the sense that it would have some effect on 
consumers' purchasing decisions.")  

The district court found, "[a]fter viewing the complained-of 
statements in this action in their context," that "[t]he 
statements as to the particular origin of game updates 
constitute nothing more than minutiae about SportsTrax." 
939 F. Supp. at 1110. We agree with the district court that 
the statements in question are not material in the present 
factual context. The inaccuracy in the statements would not 
influence consumers at the present time, whose interest in 
obtaining updated game scores on pagers is served only by 
SportsTrax. Whether the data is taken from broadcasts 
instead of being observed first-hand is, therefore, simply 
irrelevant.  

However, we note that if the NBA were in the future to 
market a rival pager with a direct datafeed from the arenas -
- perhaps with quicker updates than SportsTrax and official 
statistics -- then Motorola's statements regarding source 
might well be materially misleading. On the present facts, 
however, the complained-of statements are not material and 
do not misrepresent an inherent quality or characteristic of 
the product.  

IV. CONCLUSION  We vacate the injunction entered by 
the district court and order that the NBA's claim for 
misappropriation be dismissed. We affirm the district 
court's dismissal of the NBA's claim for false advertising 
under Section 43(a) of the Lanham Act.  

FOOTNOTES  1/ The other three SportsTrax modes 
involve information that is far less contemporaneous than 
that provided in the "current" mode. In the "statistics" 
mode, the SportsTrax pager displays a variety of player and 
team statistics, such as field goal shooting percentages and 
top scorers. However, these are calculated only at half-time 
and when the game is over. In the "final scores" mode, the 
unit displays final scores from the previous day's games. In 
the "demonstration" mode, the unit merely simulates 
information shown during a hypothetical NBA game. The 
core issue in the instant matter is the dissemination of 
continuously-updated real-time NBA game information in 
the "current" mode. Because we conclude that the 
dissemination of such real-time information is lawful, the 
other modes need no further description or discussion.  

2/ The NBA moved initially for a preliminary injunction 
and a hearing was held on that motion. Subsequently, the 
parties agreed to consolidate the hearing into a trial on the 
merits, submitting supplemental briefing and attending an 
additional oral argument.  

3/ The text of Section 102(a) reads:  Sec. 102. Subject 
matter of copyright: In general (a) Copyright protection 
subsists, in accordance with this title, in original works of 
authorship fixed in any tangible medium of expression, 
now known or later developed, from which they can be 
perceived, reproduced, or otherwise communicated, either 
directly or with the aid of a machine or device. Works of 
authorship include the following categories: (1) literary 
works;  (2) musical works, including any accompanying 
words; (3) dramatic works, including any accompanying 
music; (4) pantomimes and choreographic works;  (5) 
pictorial, graphic, and sculptural works; (6) motion pictures 
and other audiovisual works; (7) sound recordings; and  (8) 
architectural works. 

4. The relevant portions of the statute, 17 U.S.C. Sec. 301, 
read: Sec. 301. Preemption with respect to other laws (a) 
On and after January 1, 1978, all legal or equitable rights 
that are equivalent to any of the exclusive rights within the 
general scope of copyright as specified by section 106 in 
works of authorship that are fixed in a tangible medium of 
expression and come within the subject matter of copyright 
as specified by sections 102 and 103, whether created 
before or after that date and whether published or 
unpublished, are governed exclusively by this title. 
Thereafter, no person is entitled to any such right or 
equivalent right in any such work under the common law or 
statutes of any State. (b) Nothing in this title annuls or 
limits any rights or remedies under the common law or 
statutes of any State with respect to- (1) subject matter that 
does not come within the subject matter of copyright as 
specified by sections 102 and 103, including works of 
authorship not fixed in any tangible medium of expression; 
or . . . (3) activities violating legal or equitable right. that 
are not equivalent to any of the exclusive rights within the 
general scope of copyright as specified by section 106.  

5/ Although this passage implies that INS survives 
preemption because it fails the general scope requirement, 
Nimmer apparently takes the view adopted by the district 
court, namely that INS survives preemption because the 
subject matter requirement is not met. Nimmer Sec. 
1.01[B][2][b] at 1-44.2.  

6/ State law claims involving breach of fiduciary duties or 
trade-secret claims are not involved in this matter and are 
not addressed by this discussion. These claims are generally 
not preempted because they pass the "extra elements" test. 
See Altai, 982 F.2d at 717.  

7/ Quite apart from Copyright Act preemption, INS has 
long been regarded with skepticism by many courts and 
scholars and often confined strictly to its facts. In 
particular, Judge Learned Hand was notably hostile to a 
broad reading of the case. He wrote:  

[W]e think that no more was covered than situation" 
substantially similar to those then at bar. The difficulties of 
understanding it otherwise are insuperable. We are to 
suppose that the court meant to create a sort of common-
law patent or copyright for reasons of justice. Either would 
flagrantly conflict with the scheme which Congress has for 
more than a century devised to cover the subject-matter. 
Cheney Bros. v. Doris Silk Corp., 35 F.2d 279, 280 (2d Cir. 
1929), cert. denied, 281 U.S. 728 (1930). See also 
Restatement (Third) of Unfair Competition Sec. 38 cmt. c 
(1995): The facts of the INS decision are unusual and may 
serve, in part, to limit its rationale . . . . The limited extent 
to which the INS rationale has been incorporated into the 
common law of the states indicate that the decision is 
properly viewed as a response to unusual circumstances 
rather than as a statement of generally applicable principles 
of common law. Many subsequent decisions have expressly 
limited the INS case to its facts.  

8/ Some authorities have labeled this element as requiring 
direct competition between the defendant and the plaintiff 
in a primary market. "[I]n most of the small number of 
cases in which the misappropriation doctrine has been 
determinative, the defendant's appropriation, like that in 
INS, resulted in direct competition in the plaintiffs' primary 
market. . . Appeals to the misappropriation doctrine are 
almost always rejected when the appropriation does not 
intrude upon the plaintiff's primary market.", Restatement 
(Third) of Unfair Competition, Sec. 38 cmt. c, at 412-13; 
see also National Football League v. Delaware, 435 F. 
Supp. 1372 (D. Del. 1977). In that case, the NFL sued 
Delaware over the state's lottery game which was based on 
NFL games. In dismissing the wrongful misappropriation 
claims, the court stated:  

While courts have recognized that one has a right to one's 
own harvest, this proposition has not been construed to 
preclude others from profiting from demands for collateral 
services generated by the success of one's business venture.  

Id. at 1378. The court also noted, "It is true that Delaware is 
thus making profits it would not make but for the existence 
of the NFL, but I find this difficult to distinguish from the 
multitude of charter bus companies who generate profit 
from servicing those of plaintiffs' fans who want to go to 
the stadium or, indeed, the sidewalk popcorn salesman 
who-services the crowd as it surges towards the gate." Id.  

9/ It may well be that the NBA's product, when enhanced, 
will actually have a competitive edge because its Gamestats 
system will apparently be used for a number of in-stadium 
services as well as the pager market, resulting in a certain 
amount of cost sharing. Gamestats might also have a 
temporal advantage in collecting and transmitting official 
statistics. Whether this is so does not affect our disposition 
of this matter, although it does demonstrate the gulf 
between this case and INS, where the free-riding created 
the danger of no wire service being viable.  

10/ In view of our disposition of this matter, we need not 
address appellants' First Amendment and [aches defenses.  

11/ The text of 15 U.S.C. Sec. 1125(a)(1) reads in pertinent 
part: Sec. 1125. False designations of origin, false 
descriptions, and dilution forbidden (a) Civil action; any 
person  (1) Any person who, on or in connection with any 
goods or services, or any container for goods, uses in 
commerce any word, term, name, symbol, or device, or any 
combination thereof, or any false designation of origin, 
false or misleading description of fact, or false or 
misleading representation of fact, which-- (A) is likely to 
cause confusion, or to cause mistake, or to deceive as to the 
affiliation, connection, or association of such person with 
another person, or as to the origin, sponsorship, or approval 
of his or her goods, services, or commercial activities by 
another person, or (B) in commercial advertising or 
promotion, misrepresents the nature, characteristics, 
qualities, or geographic origin of his or her or another 
person's goods, services, or commercial activities, shall be 
liable in a civil action by any person who believes that he 
or she is or is likely to be damaged by such act.