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Counterclaim filed against the WIAA

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Associated Press
March 25, 2009
— A media company and a trade group say a lawsuit by Wisconsin’s high school athletic association is unconstitutional.

The Wisconsin Newspaper Association and Gannett Co. filed a response and counterclaim in federal court in Madison on Tuesday against the Wisconsin Interscholastic Athletic Association.


The WNA claims the WIAA is violating newspapers’ rights under the Copyright Act by granting exclusive contracts to private companies covering tournament events.


WIAA spokesman Todd Clark declined to comment, saying he hadn’t seen the WNA’s counterclaim. Jerry O’Brien, an attorney representing the WIAA, said he had a chance to scan the filing but would need time before he’d be able to comment on specifics of the case.


The WIAA filed its lawsuit in December against the WNA and Gannett, which owns The Post-Crescent of Appleton, after the newspaper’s Webcast of a high school playoff game Nov. 8.


The WIAA says one of its contracted private partners owned the Webcast rights to the event and is owed a fee. But WNA lawyers contend that the host schools, all public, didn’t object when The Post-Crescent streamed the game and three others over the Internet.


Dan Flannery, executive editor of The Post-Crescent, said reporters used the schools’ press boxes to work in and provide audio for the Webcast. But Gannett newspapers did not receive permission and did not use a streaming Internet report on four other games it wanted to cover.


Even though the WIAA is a nonprofit association operating independently of the state Department of Public Instruction, the WNA says the WIAA is acting on behalf of more than 500 public schools in Wisconsin, making football games government-sponsored public events played in venues built with public money.


The WIAA contends that football games are entertainment, not governmental functions.


The WNA and Gannett want a court to determine that the WIAA is a state actor on the schools’ behalf and rule that granting exclusive rights to tournament events amounts to “discriminatory media access,” making it unconstitutional.


The filing by the WNA and Gannett adds that newspapers were not given notice or an opportunity to bid or negotiate for any of the exclusive rights that WIAA awarded.


“WIAA has no right to use long-term, no-bid, exclusive-rights contracts to explicitly or implicitly control the content of reporting about tournament events,” the filing states.


The counterclaim also says the WIAA’s policies regarding newspapers selling photos it takes, Internet broadcasts and Internet writing through live blogs should all be struck down.


“WIAA has no right to interfere with newspapers’ editorial discretion to report tournament events utilizing any technology of their choosing, including photography and Internet streaming, subject only to reasonable time, place and manner restrictions applied equally to all similarly situated journalists,” the filing states.


According to the WNA, the WIAA has attempted to restrict and censor written reports of tournament events and said WNA members in Milwaukee and Madison violated the exclusive rights contracts by live blogging the state championship games last fall.


WIAA went so far as invoicing those newspapers for payment of license fees for those rights, according to the WNA’s counterclaim.


“Through this action, we want to protect the rights of our member newspapers to do the reporting that they have done for decades,” said Peter Fox, executive director of the Wisconsin Newspaper Association, which currently has 253 members. “The issue for Wisconsin newspapers is the WIAA’s overarching claim of ownership of all these aspects of hometown, high school sports.”


In the initial lawsuit, the WIAA wanted a state court to rule it owned “any transmission, internet stream, photo, image, film, videotape, audiotape, writing, drawing or depiction or description of any game, game action, game information, or any commercial used of the same of an athletic event that it sponsors, and that it has the right to grant exclusive rights to others.”


The case was moved to federal court from state court last week.



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