### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT March 31,

2004 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE EL EVENTH C IRCUIT

Nos. 03- 10226, 03-11 502

D. C. Docket Nos. 00 -01128 CV- J-20-HTS 00-01128 CV-3-J-2 0HTS MORRIS COMMUNICATIONS CORP., a Georgi a Corpora

tion, Plaintiff -Appella nt,

versus PGA TOUR, INC., Defendant-Appellee.

Appeals from the United States D istrict Court for the Mi ddle Distr

ict of Flo rida (March31, 2004)

Before EDMOND SON, Chief Judge , DUB INA and COX, Circuit J

udges. DUBINA, Circuit Judge:2

Plaintiff -Appella nt, Morr is Com munic ations Cor

p. (“ Morris”) , brought suit against Def

endant-Ap pellee PGA TOUR, Inc. (“PGA”), alleg ing that PGA violated se ction 2 of th e Sherm an Act, codified a

t 15 U.S. C. § 2, by

monopol izing the ma rkets for (1) the pub lication of

compi led real- time golf score s on the internet, and (2) the

sale, or syndic ation of tho se scores . In addit ion, Morr is alleged that PGA further violated section 2 of the Sherma n Act by refusing to deal with Morris . The district court gran ted summary judgment in favor o f PGA because it found, inter alia , that PG A had a valid business j ustificat ion for its actions. For the reasons that follow, we aff

irm t he judgm ent of the d

istrict c ourt. I. BACKGROUND A. Facts Morris is a media company that pub lishes p rint and el ectronic n ewspapers. PGA is t he sponsor of

a series of profes sional golf tournam ents through out North Ame rica know

n as the PG

A Tour. In order

to provide g olf score s during its tournaments, PGA has developed a Real-Time Scoring Sy stem (“ RTSS”) that allows PGA to monitor the play around the entire golf course. RTSS is an elaborate electronic relay scoring sy stem that relies on state-of-the-art com puter technology

and equipm

ent as we ll as dozen s of traine d worker s and volunte ers.3

RTSS works as fo llows. Durin g a PGA golf to urnament, volu nteers kn own as walkin g scorers follow each group of golfers on the course and tabula

te the scores of each player at the end of eac h hole played. The scores are then collected by other volunteers, known as hole reporters, located at each of the eighteen greens on t

he golf cour se, who r

elay the scorin g information to a remote production truck staffed by PGA personnel. The score s of all participating golfers are th en pro cesse d at th e remote p rodu ctio n tru ck and trans mitted to PGA’s website, www.pgatour.com , as real-time golf score s, which are scores that are transm itted elec tronicall

y near ly cont empor

aneously to their a ctual occ urrence on the golf course. At the same tim e, the compiled scores are also transm itted to an on-site media c enter where members of th e media are able to a ccess the s cores. The sam e inform ation is als o transm

itted to var

ious elect ronic lea derboards located th roughout thegolf cours e. As th eir name suggests, the leade rboards typically show

only the top ten or f

ifteen pla yers’ scores. The natur e of a PG A golf tour

name nt makes it im

possible for

one person to physic ally f

ollow all t

he play ers at onc e. Firs t, the average golf course spa

ns approximatel y 150 acres and v arious go lfers play numerous holes simult aneously. In addition, the PGA

does not all ow its invit ees to use c ell phones a nd hand-hel d devices on t

he coursebecause s uch device s might disrupt pla

y. T herefore, the1 Prior to 1999, credentialed members of the media could view scor es in the media center and then re-key

them directly into their own computers for transmission to their company’s I nternet server s. The re sult was that compe titors of p gatour .com, inc luding Morris, we re able to publish real-ti me score s on their

web sites as fast a s or possib ly f

aster tha n pgato ur.com. B eginnin

g in January 1999, shor

tly a fter the PGA Tour e

ntered i nto an excl

usive sy ndication contra

ct with USA Today

, it institute d [OLSR] a

pplicabl e to all cr

edentia led media invitees. Around th e same time, Morris began publishing scores from PGA Tour tourna ments on its web sites and selling them to thir

d partie s, and Mor

ris appe ars to ha

ve been the PGA To

ur’s only major co mpetitor i

n the syndication marke

t. Morris Communications Corp. v. PGA Tour, Inc. , 235 F. Supp. 2d 1269, 1274 (M.D. Fla. 2002). The version of the OLSR at issue here was instituted in January 2000.

2 PGA agreed that once the g olf scores are posted on its website, they are in the public domain. Id. at 1275 n.9. 4 only source of compiled golf scores for all tournam ent players is RTSS. Likewise, the only physic al locatio n at which to obtain co mpile d golf scores is the m edia center. In order for media organizations to have access to the PGA media center, they m ust obtain f

ree pres s credent

ials from PGA. To obtain these cre dentials, all media organiza tions m ust agree to follow PGA’ s term s and conditi ons, includ ing PGA’ s On-Line Servic e Regulat ions (“ OLSR” ). The

OLSR r equire m edia organizat ions to dela

y public ation on thei

r interne t website s of scorin g information obtained by RTSS until the earliest of (1) thirty minutes after the actual occurrence of the shot 1 or (2) suc h information has be come legally available in the public domain, i.e. af

ter the scores are posted on PGA’s official w ebsite,

www. pg ato ur. com. 2 In addition , the OL SR prohibi t credent ialed m edia3 “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 PGA TOUR.” [R. Vol. 1 at Tab 1, Exh. 4.]

4 Morris al so alleg ed violat ions of Fl orida De ceptive and Unfa ir Trade Practic es Act, F la. Stat. Ann. § 501.201 et seq. , and tortious interference with contract. Morris has not appe aled the district c ourt’s g

rant of s ummary judgmen t in favor of PGA on these cla

ims. 5 organizations from selling, or syndicating, com piled scoring information obtained in the media center to non-credentialed third-party internet website publishers without fi rst buying a l icense to d o so from PGA. 3 Morris co ntends that, as a result of the O LSR, P GA is the only en tity a ble to publish and se ll real- time golf score s. Thus, Morris co ntinues, P GA has a n unfair advantage

in the public ation and sy ndication of

the score s. PGA

counters t

hat it adopted the

OLSR to preserv e the value of its inves tment

in creating and developi ng RTSS and to promote the competi tiveness of its own web site. Based on th e allegedl y illegal OLSR, Morri s filed su it agains t PGA, asserting four antit

rust claims: (1) m

onopolizati on of the int ernet markets, (2) unlawful refusal to deal, (3) monopoly leveraging, and (4) attempted monopol ization of

the intern et ma

rkets. 4 B. Procedura l History After e xtensive pre-trial

discovery , the par

ties file d cross-m

otions for

summ ary j udgmen

t on each c laim. The distr ict court g

ranted PG

A’s m otion for5 The distr ict cour t did not, ho

wever, find that P GA had un lawfully monopolize d or ref

used to deal. To the contrary , the district court found that Morris failed to prove a § 2 claim of monopolization as a matter of law, Morris Communications , 235 F. Supp. 2d at 1283; that the media center was not an essential facility , id. at 1285; that PGA did n ot have un

lawful in tent to harm competition or a competitor, id. at 1284, a nd thus did n

ot unlawf ully refuse to deal wi

th Morris, id. at 1285-86, engage in unlawf ul monopoly leveraging, id. at 1286, or unlawf ully attempt to monopolize, id. 6 summ ary j udgmen

t, finding that PGA

had a valid

business j ustificat

ion for its OLSR be cause theOLSR p revented Morris fr om free-ridin g on PGA’ s investment in its costly

RTSS. Accordi

ngly, the distric t court fou nd that PG

A had not violated the

antitrust l aws even

if it operated a m

onopoly a nd refuse d to deal w ith Morris. 5 Subsequent

to the gran

ting of sum

mary judgm ent in favo r of PGA , Morris filed a R ule 60 m otion for relief fr om j udgmen

t on the grou

nd that, f ollowing the issuance of judgment in favor of PGA, PGA adopted new term s of service (“TOS” ) regarding www.pgatour.com in further violation of § 2 of the Sherman Act. T he new T OS prohib it anyo ne from using the inf

orma tion displayed on

www. pgatour.c om for

a com merc ial purpose

without first buy ing a licen se from PGA. The distr

ict court d enied the m

otion, fin ding that the

new TO S werebeyond the scope of

the instant

lawsuit, which add

ressed only

PGA’ s medi a creden

tialing regul atio ns an d the OLSR. Acco rdin gly, th e dis trict court foun d tha t Morr is’s challenge to the new

TOS w ould be more aptly addresse d in a separ

ate law suit.6 The arguments of Morris and its amici, who are va rious media organizations, entities, and associa tions, foc us larg ely on irrele vant copy right la w and ar gue tha t facts, s uch as g olf scor

es, and compi lations of

facts a re generally

not a prop er subje ct for c opy right pr otection . While this assertion is a correct statement of law, it has no bear ing on whether the golf score s and compilati on of go lf score s are the proprietary

product o f PGA’s RT SS. At oral argume nt, Morris conceded that this is not a copy right case. 7 Morris tim

ely a nd separa tely a ppealed the

adverse s ummary j udgmen t and Rule 60 orders. Thi s court con solidated t he two app eals. II. STANDARDS OF REVIEW This cour t review s de novo whether the district court correctly granted

summar y judgment in favor of PGA on all counts, applying the sam e standard that governed the distr ict court. Levinson v . Relia nce Standard L ife Ins. Co. , 245 F.3 d 1321, 13 25 (11th Cir. 2001). This cour t review s whether

the distric t court cor

rectly denied Mor

ris’s R ule 60 motion for abuse of di scretion. See Bivens Gardens Office Bldg., Inc. v. Barnett Banks of Fla., Inc. , 140 F.3d 898, 905 (11th Cir. 1998). III. ANALY SIS Before d iscussing the

antitrust i ssues in this case, it is imp ortant to no te what this c ase is not

about. Co ntrary

to the argu

ments of Morris and its amici curiae , this case i s not abo ut copyright law, 6 the Constit ution, the First7 In its

argume nt for summary

judgmen t in the dist

rict cou rt, Morri s stated that “this c ase is not a First Amendment case . . . [i]t’s an antitrust case.” [R. Vol. 10 at pp. 8-9.]

8 As the district court stated at the hearing on the cross- motions for summary judgment, “ all that this court is interested in is the issues that you people bring to it. We’re not making advisory opinions. A

nd we don’ t chang e the fa cts. The f acts ar e what the

facts a re. And w

hat [we] ru

le on today may be a lot di ffere

nt than the

case the two of y ou are in volved in t

omorrow. ” [R. Vol. 10 at p. 106.]

9 At the hea

ring re gardin

g the pr eliminar y in junction, the distri ct court asked co unsel for PGA if PGA would permit “Morris . . . to disseminate this information to its companies, its various news companies, not charging them any thing, just disseminating it”? Counsel for PGA responded: There’ s no proble

m becaus e that to u s is news c overag e, and . . . [w]e eag erly , eage rly invite and want the press to do their function, their normal function of ga thering and dissemina ting the news, an d becau se it’s so i

mportant t

o us to have

them do tha

t, we told Morris a yea

r ago that we would allow them in the media center to sit there and re-key right from there into their own website and any of their related companies as a matter of news coverage, they

could have those real-time scores right a way for free. . . . The problem comes in only when Mor ris wishes to go into another business, which they label 8 Ame ndment , 7 or free dom of the press i

n news re porting. T

his case is a straight

forwar d antitrust

case involving a produc t and a def endant’ s assertio n of a valid business j ustificat

ion as its de fense to a

nticom petitive a ctions, if

any. Also impor tant to noteis that this case is be ing decided based upon th e facts p resented , not a hy pothetical situation, no mat

ter how pr

obable its a ctualiza

tion. 8 Accordingly, the only

real issue

before us is whethe r PGA’ s restric tions and prohibitions regardin g Morris’ s ability to sell compi led real- time golf score s to third part ies violate s § 2 of the S herm an Act. We do no t address M orris’ s right of access to and internal dissemination of compiled real-tim e golf-scores, as permitted by the PGA. 9the news syndica tion business. . . . [I]t is not the business of gathering and disseminating news. It is the business of selling a c ommercially valuable product that we have developed and paid for and we oug ht to be the ones to sell that. [R. Vol. 8 at pp. 34-36.]

10 Morris challeng es the dis trict cou rt’s res olution of

its monopoli zation and

attempt to monopolize

claims. F or the pur

poses of t his case , the ele

ments of the two off

enses dif fer in on ly one material respect: attempt to monopolize requires specific intent to achieve monopoly power. See Spectrum Sports, Inc. v. McQuillan , 506 U.S. 447, 456, 113 S. Ct. 884, 890-91, 122 L. Ed. 2d 247 (1993) (“[T]o demonstrate attempted monopolization a plaintiff must prove (1) that the defenda nt has engaged in

predatory

or antic ompetitive

conduct w

ith (2) a s pecific intent to monopolize and (3) a dangerous probability of achieving monopoly

power.”). Therefore, the attempt claim in this case is more difficult to maintain and prove. Because Mor ris does not withstand summary judgment on its monopolization claim, it cannot maintain its attempt claim. Accordingly , we decline to discuss the attempt claim further. 9 A. Mono polization 10 Section 2 o f the Sher

man A ct provides that “ [e]ve ry per son who shal l monopolize, or attem

pt to monopolize, . . . any part of the trade or comm erce among the several States, . . . shall be deemed guilty of a felony. . . .” 15 U.S.C. § 2. “ The offense of monopoly u nder § 2 of t

he Sherm an Act ha s two elem

ents: (1) the pos session of m

onopoly p ower in th e releva nt mar ket and (2) the willf

ul acquisition

or ma intenance of that pow er as disti

nguished fr

om gro wth or development as a c onsequence of a super

ior product , business acum en, or his toric accident.” United Stat

es v. G rinnell Corp

. , 384 U. S. 563, 5 70-71, 86 S . Ct. 169 8, 1704, 16 L. Ed. 2d 778 (1966).11 Morris challenges the district court’s resolution of its refusal to dea l and monopoly leverag

ing claims. F or purpos es of this c ase, the elements of the two

claims ar e suffic iently

similar to warrant only

one discussion. See Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP , 124 S. Ct. 872, 883 n.4 (2004) (“[L]everaging presupposes anticompetitive conduct, which in this case could only be the refusal-to-deal claim we have rejected.”). 10 The fir st element, monopoly p ower, i s the powe r to contro l prices in or to exclude co mpetition fro m the relevant market. United Stat es v. E .I. du P ont de Nemours &

Co. , 351 U.S. 377, 3 91, 76 S. Ct. 99 4, 1005, 10 0 L. Ed. 1264 (1 956). The seco nd elem ent requir es predat ory or

exclusiona

ry ac ts or prac tices that

have the effe ct of pre venting or e xcluding com petition w ithin the re levant market. See United Stat

es v. M icrosoft , 253 F.3d 34, 58 (D.C. Cir. 2001). In order for a practice to be exclu sionary , “i t must harm the com petitive process and there by harm consumers.” Id. “[H] arm to one or more competit ors will not suffice” for a § 2 viola tion. Id .; see also Co nsultants & Designer s, Inc. v. Butl

er Serv. Group, Inc. , 720 F.2d 1553, 1562 (11th Cir. 1983) (“The relevant inquiry is not whether [a company’ s] present attempt to exclude adversely impacts com

petition but rather whether its acquisi tion of the p ower to e xclude com petitors had a suffic iently adverse impact on com

petition to constitute a [Sherman Act] violation.”). B. Re fusal to De al 11 Two theories exist upon which to predicate a unilateral refusal to deal claim: (1) the in tent test and (2) the essential facility test. Mid-Tex as12 In Bonner v . City of Pri

chard , 661 F.2d 1206, 1207-09 (11th Cir. 1981) (en banc), this court adopted as binding precedent all Fifth Circuit dec isions issued prior to October 1, 1981. 11 Co mm u n ic a ti o n s Sy s ., In c. v. AT &T , 615 F.2d 1372, 1387 n.12 (5th Cir. 1980). 12 Under the intent test , it is unla

wful for a mono polist to maintain or extend its monopoly power by

intentionally engaging in conduct that unnecessarily excludes competitors an d impairs competit ion. See id. at 1388; see also E astman Kodak Co. v. S. Photo M

aterials Co. , 273 U.S. 359, 47 S. Ct. 400, 71 L . Ed. 684 (1927). Under the essential facility test, a com pany that has exclusive control over a facility essential to effective com petition may not deny

potential competitors access to that fac ility o n reasona ble term s and conditi ons if to do so would cre ate or maintain monop oly power in th e relevant market

. Covad Com munications Co. v. Bel lSouth Corp. , 299 F.3d 12 72, 1285 (11th Cir. 2 002), cert. gra nted and judgment v

acated on oth er grounds , 124 S. C t. 1143 (200 4); MCI Co mm u n ic a ti o n s Co r

p . v . A T&T

, 708 F.2 d 1081, 1132- 33 (7th Cir . 1983); see also Verizon Communications, Inc. v. Law Offices of Curtis V. T rinko, LLP , 124 S. C t. 872, 881 (20 04) (“ The indispensable re quirem ent for inv oking the doc trine is the unavailabi lity of

access t o the ‘e ssential f acilities ’; whe re acce ss exists, the doctrine s erves no pur

pose.”) . The pl aintiff ha s the burde n of proving t hat the12

defendant controls a

n essentia l facilit

y that cannot be pr

acticall y or e conomi cally duplicat ed. See Covad Com munications , 299 F.3d at 1285. In the abse nce of any purpo se to create o r maintain a monopo ly, however, a company may deal or refuse to de al with whomever i t pleases. Aspen Skiing Co. v. Aspen Hi ghlands Skiing

Corp. , 472 U.S. 585, 6 01-02, 10 5 S. Ct. 2847 , 2857, 86 L. Ed. 2d 467 (1985) (quo ting United Stat es v. Col gate & Co. , 250 U. S. 300, 3 07, 39 S. Ct. 465, 468, 63 L. Ed. 992 (1919)). Even a company with monopoly power has no general

duty to c ooperate with its bus iness rivals and m ay re fuse to deal with them if valid b usiness reasons ex ist for su ch refusal. See Mid- Texas Communic ations , 615 F.2d at 1388. Ordinar ily, when determining whether a defenda

nt has viola

ted § 2 of the Sherm an Act, we firs t determ ine the re levant market and then decid e whethe r the defendant possessed m

onopoly p ower in th at ma rket. In this case , however, we do not pursue su ch an inquir y beca use we ag ree wit h the distri ct court th at even if PGA po ss ess ed mo no po ly p owe r in th e re lev ant mark et, Mor ris ’s § 2 cl aims cannot pr evail becau se PGA has a vali d busin ess justifi cation for its actio ns. Theref ore, even if PGA

is mono polistic, and even if PGA re fused to de al with Morris, it has not vio lated § 2 of the Sherm

an Act.13

C. Vali d Business Justificat

ion as a Def

ense “The Sherm

an Act is . . . the ‘ Magna Carta of free enterprise,’ but it does not give ju dges carte blanc he to insist tha t a mo nopolist alter its way of doing business whenever some other approach might yield greater com petition.” Verizon C ommunica tions , 124 S. C t. at 883 ( internal q uotations om

itted). To the contrary , “S ection 2 of

the Sherm

an Act . . . see ks mer

ely to prevent unlawful monopolizati on ” and unla wful refusal s to deal. Id. Unlawf ul monop oly pow er requir es anticom

petitive c onduct, w

hich is “cond uct without

a legitim ate busines s purpose tha

t make s sense only

because i t eliminates com

petition.” Gen. In dus. Corp. v. Hart z Mountain C

orp. , 810 F.2 d 795, 804 (8t

h Cir. 198 7); see also Le

page’s Inc . v. 3M

, 324 F.3d 141, 153-54 (3rd Cir. 2003) (discussing Conwood Co. , L.P . v. U nited States

Tobacco C

o. , 290 F.3 d 768 (6th Cir. 2002), cert. denied , 537 U.S. 1148 (2003)). Likewise, r efusal to deal that is designed to protect or further the legitimate business purposes of a defendant does not violate the antitrust laws, even if that refusal injures competition

. See Aspe n Skiing , 472 U. S. at 604, 105 S. Ct. at 2858; see also NYNEX Corp. v. Discon, Inc. , 525 U. S. 128, 1 37, 119 S. Ct. 493, 499, 142 L . Ed. 2d 510 (1998) (citing

Brooke G

roup Ltd. v . Brown &

William son Tobacco Corp. , 509 U.S. 209, 225, 1 13 S. Ct. 2578, 2589, 125 L. E d. 2d 168 (19 93)), fo r the14

proposition t

hat “ [e]ve n an act of

pure m alice by

one business compe titor against another does not, without more, state a claim under the federal antitrust laws”); United Stat

es Football

League v. National F

ootball Leag

ue , 842 F.2 d 1335, 1360 (2d Cir. 1988) (conc luding that no § 2 liabilit y exist ed where

network’ s actions were ba sed on desire “to obtain $736 m illion in rig

hts fees, not to exclu de competitors”)

. Once the defendant

has m et its burden to show its valid busine ss justific ation, the

burden shif

ts to the plaintiff to s how that th e proffe red busines s justificat ion is pre textual. See U.S. Anchor Mfg., Inc. v. Rule Indus., Inc. , 7 F.3d 986, 1002 (1 1th Cir. 1 993); see also Im age Technical Servs. , Inc. v. Eastm an Kodak Co. , 125 F.3d 11 95, 1212 (9th Cir. 19 97). In this cas e, PGA

met i ts business j ustificat ion burden by

showing tha

t it seeks to p revent Morr is from “free-riding” o n PGA’s RTSS techno logy. See Cont’l T.V., Inc. v. GTE Sylvania Inc. , 433 U.S. 36, 55 , 97 S. Ct. 2549 , 2560, 53 L. Ed. 2d 568 (1977) (st ating that p revention o f “f ree-ri ding” by

compe titors is a legitimate business purpose); Consultants & Designer s , 720 F.2 d at 1559 (concludin g that defendant “had a legit imate interest in protect

ing from opportunistic appropriation its investment in acquiring the information necessary to carry on its busines s”). T o achieveits business purpose, P GA has refused to13 Morris also argues that PGA is not allowed to put restrictions on the dissemination of the

compiled golf scores once they reach the media center bec ause PGA did not previously put any restrictions on the ir dissemi nation. Th

is argu ment is unp ersuasi

ve. PGA ha s a righ

t to contro l its propert y in terest in its RTSS and t

he compil ed golf

scores, which ar

e the pro duct of RT SS, regar dless of it s past pra

ctices. As the dist

rict cou rt stated : “what [PG

A] say [s] the dela

y should be and what delay

[PGA] can legally impose ar e two different things perhaps.” [R. Vol. 10 at p. 104.] The lack of prior restrictions is merely indicative of PGA’s symbiotic rela tionship with the media.

14 Morris sta

ted in the district c ourt that i

t was “no t disputing

that [PGA] ma

y ha ve a prop erty right.” [R. Vol. 10 at p. 93.] As counsel for PGA stated at the hearing on the pre liminary injunction: “without this elaborate, comprehensive sy stem there wouldn’t be real-time scores that Morris wo

uld like to s ell to thir

d partie s. It j ust wouldn ’t be the re beca use these don’t exist i

n the air.” [R. Vol. 8 at p. 31.] 15 grant Morr

is access to PGA tournam ents unless Morris ag rees not to sell the product of PGA’ s propriet ary R TSS – co mpile d real-time go lf scores – to noncredenti aled third -party

internet p ublishers. Morris responds that it has a ri ght to sell such pr

oduct notwi thstanding th at RTSS was deve loped and paid for, a nd is operated b y, PGA. 13 We disagree with Morris. T he compiled real-tim e golf scores acquired through RT SS are n ot a product that Morr

is has a ri ght to sell be cause the y are a deri vat ive pro duc t of RTSS , whi ch PG A own s ex clu siv ely. 14 We agree with the di strict cou

rt that PG A “h as a right to sell or l icense its product, cham pionship golf, and its der ivative pr oduct, [c ompile d] golf s cores, o n the Internet in the sam

e way the [PG A] cur rently sells its r ights to tele vision broadcasting stations.” Morris Communication Corp. v. PGA Tour, Inc. , 235 F. Supp. 2d 1 269, 128 2 (M.D. Fla. 2002 ).16

If Morris wis hes to sel l PGA’s product , it must first pu rchase it fro m PGA. See Consult

ants &Designer

s , 720 F.2 d at 1559 (e xplaining tha t plaintiff did not have the right to abrogate defendant’s property interest). Se ction 2 of the Sherman Act does n ot require

PGA to give its produ ct freely to its c ompetitors. See Seagood Trading Corp. v. Jerrico, Inc. , 924 F.2 d 1555, 1573 ( 11th Cir. 1991) (stating th at it “ is not a func tion of the a ntitrust la ws” to equip plaintif

fs with defendant s’ com

petitive a dvantages) . PGA is willing to sell its p roduct to it s compe titors, in cluding Mor ris, ther eby al lowing credentiale d medi a organiz ations like Morris to syndicate compiled real- time golf scores after pay ing a licensing fee to PGA. Accordi

ngly, we concl

ude from the recor d that PGA

has satisf

ied its burden to sho w a valid business j ustificat ion. D. Bus iness Justi

fication Is

Not Pret extual BecausePGA ha s met

its burden o f showing t

hat its asserted busine ss justification is valid, the burden shifts to Morris to allege facts that support an inferenc e that the proffered justif ication is m

erely pretextual, there

by esta blishing genuine i ssues of materia l fact. U.S. A nchor Mfg. , 7 F.3d a t 1002; see also Im age Technical Servs. , 125 F.3 d at 1212. M orris ar gues that P GA’s only j ustificat ion for its re fusal to de al with Mo rris on Mor ris’s terms i s econom

ic and such sole motiva tion is not a v alid busines s justifi cation; thus , PGA ’s jus tificati on is17

pretextu al. See LePage’s , 324 F.3d at 163 (“[D] efendant’s assertion that it acted in further ance of it s econom

ic intere sts does not c onstitute the type of business justificat ion that is an accept able defens e to § 2 monopo lization .”). Morris supp orts its ar

gument with a se ries of c ases whic h are fund amen tally distinguishab le from

this case. In the ca ses upon whi ch Morris relies, the plaintiff s alleging a

ntitrust vio lations had created with their

own work

and effor ts, or purchased with their own money , their very own p roducts that defendants prohibi ted them from sellin g. See, e. g. , Eastman K odak Co. v . Image

Technica l Servs., Inc. , 504 U. S. 451, 4 85, 112 S. Ct. 2072, 2092, 119 L . Ed. 2 d 265 (1992) (plaintif fs “invest substa

ntially . . . in parts inventory” ); Aspen Ski ing , 472 U.S. at 587-88, 1 05 S. Ct. at 28 50 (plain tiff devel oped and maintained it s own compe titive ski resort and s ki package s); Lorain Journal Co. v. United States , 342 U.S. 143, 149-50, 72 S. Ct. 181, 184-85 , 96 L. Ed. 162 ( 1951) (inj ured com petitor trying to sell its radio air time for advertisements); Int’l News Serv. v. Associated Press , 248 U.S. 215, 221, 39 S. Ct. 68, 69, 63 L. Ed. 211 (1918) (plaintiff “gathers in all part s of the w orld, by mea ns of vario us instrumentalitie s of its ow n, by exchange with its mem

bers, and by other appropriate m eans, news and intelligence of curre nt and rec ent events of intere st to newsp aper readers”); LePage’s , 324 F.3 d at 144 (plaintiff se lling its ow n transpar

ent tape) ; Microsoft Corp. , 253 F.3 d at 6318

(injured competitors deterred from selling their own computers and browsers); Nat’l Basketball Ass’n v. Motorola, Inc. , 105 F.3 d 841, 854 (2 d Cir. 199 7) (analy zing free -riding iss ues and notin g that plain tiff did not

free-r ide becau se it used its ow

n efforts to conduct bu siness); U.S. A nchor Mfg. , 7 F.3d a t 990 (plaintif f ma nufactures and suppli es anchor s); Trans Sport, Inc. v. Starter Sportswear, Inc. , 964 F.2d 186, 187 (2d Cir. 1992) (plaintiffs purchased product from defendants ). Morris re fers to thi s distinctio n as PGA ’s “ sweat of the brow”

defense a

nd correctly states that it is not a defense in a copyrigh t case

. Feist Pulb’ns, Inc. v. Rural Tel. Serv. Co., Inc. , 499 U. S. 340, 3 59-60, 111 S . Ct. 128 2, 1295, 11 3 L. Ed

. 2d 358 (1991) (concludin g that “ sweat of the brow”

is no defen se in a copy

right case). [Appella

nt Br. a t 53-55.] This we ll-establ ished ruleof copy right law is irreleva nt, howe ver, in t

his antitru st case. The “ sweat of the brow”

product, to which Mor

ris (and th e district

court) refer, is no diffe

rent than, for exam

ple, the interconne ction serv ices in Verizon C ommunica tions , 124 S. C t. at 876, the job shoppers in

Consultants &

Designer s , 720 F.2 d at 1555, a

nd the sports jacket s in Starter Sport

swear , 964 F.2d at 187. Moreover , even if

we overl ook the funda

mental and disposit

ive distinc tion between this case and the cases cited by Morris, the ca se law supports summar y19

judgment in fav or of PGA. See Veri zon Commu nications , 124 S. C t. at 879 (“ Aspen Ski ing

is at or ne ar the outer boundary of § 2 liabi lity”) ; Aspen Ski ing , 472 U.S. at 593-94, 105 S. Ct. at 2852-53 ( defendant refused to accom

modat e and cooperate with plain

tiff, refused to sell

its product to plaintiff, and acted contrary to its own e conomi c interes ts in order to elim inate plaintiff); Otter Tai l Power C o. v. United States , 410 U. S. 366, 3 70-72, 93 S . Ct. 102 2, 1026-27, 35 L. E d. 2d 359 (1973) (defendant was already in the business of selling a servic e to cert ain custom ers and re fused to sell the sam e service

to certain other cu stome rs); Lorain Journal , 342 U. S. at 148- 49, 72 S. Ct. at 18 3-84 (def endant re fused to sell

to plaintiff in violation of the She rman Act); Starter Sport

swear , 964 F.2 d at 189-91 (holding, in a factua

lly ana logous case , that def

endant had v alid busines s justific ation for r

efusal to d eal); Fishman v . Estate of Wirtz , 807 F.2 d 520, 562 (7th Cir. 1986) (holding defenda nt liable un der § 2 for

refusing to leaseChicago Stadium to plaintiff). The rel evant law

supports our

conclusion t

hat Morri s’s arg

ument is unavailing a

nd does not show

that PGA ’s busine ss justif ication is p retextua l. The prevention

of free -riding, which is a n inherentl

y econ omic m

otivation, provides a valid business justification on the facts presented here. Accordingly, Morris has not raised any issues of material fact and summ ary judgm ent in favor of PGA was20

proper. See Int’l

Railways of Cent. Am. v . United

Brands Co. , 532 F.2 d 231, 239- 40 (2d Cir.), cert. denied , 429 U .S. 835 (197 6) (st atin g tha t pro of of a company’s reasonable steps to preserve its business interests does not, without more, raise a genuine i ssue of material fact under § 2). E. Mor ris’s Rule 60(b) mot

ion Relief pu rsuant to R

ule 60(b)( 2) is appro priate onl y if th e moving party offers newly dis covered ev idence th at could al ter the out come of the trial

. See Wilson v . Thomps on , 638 F.2 d 801, 804 (1 1th Cir. 1 981); Fed. R. Civ. Pro. 60(b)(2) . Beca

use we review the

district c ourt’s d ecision fo r abuse of discretio n, “it is not enough tha

t a grant of

the m otion m ight have be en perm issible or warranted.” Fackelm an v. Be ll , 564 F.2d 734, 736 (5th Cir. 1977). After reviewing the record, we conclude that the district court did not err in finding that the new T OS evide nce would have fail ed to alter the outcom

e of the tr ial in light of PGA ’s valid

business j ustificat

ion for its regulation s. Acc ordingly , we hold the district c ourt did not a

buse its disc retion wh en it denie d the Rule 6 0 motio n. IV. CONCLUSION Contrary to Morris’ s argum ent regar ding copy right law , this ca se is not about copy

right and th e district

court did no t find the go lf scores to be trade15 “The [PGA]’s property rig ht does not come from copy right law, as copy

right law does not protect factual information, like golf scores.” Morris Communications , 235 F. Supp. 2d at 1281. 21 secrets. 15 The distr

ict court c orrectly

found that a

compa ny – even a mon opolist compa ny – tha t expends ti me a

nd money to cr

eate a valuable prod

uct does not violate the antitrust laws when it declines to provide that product to its competitors for free. PGA has ac comm odated Morris at every step along the way , has agreed to sell its p roduct to Mo rris, a nd has acte d appropria

tely t o protect i ts econom ic interests and investm

ents. Y et Morris dema

nds that it be

given acc ess to the product of PGA’ s propriet ary R TSS, without com

pensating P GA, so that Morr is can then sell that product to others for a fee. That is the classic example of “freeriding,”the preve ntion of wh ich, under antitrust l aw, con stitutes a l egitim ate procompetitive re ason for impos ing a restri ction. For t he foregoi ng reason s, we affirm the distric t court’ s grant of s ummary j udgmen t in favor of PGA

and the district court’s orde r denying Morr is’s Rule 60 (b) motion. AFFIRMED.