1/27. The U.S. Court of Appeals (2ndCir) issued its opinion [47 pages in PDF] in Swatch v. Bloomberg, affirming the judgment of the U.S. District Court (SDNY).

The Court of Appeals held that Bloomberg's dissemination of an audio recording made for Swatch of a conference call for investment analysts regarding annual earnings was fair use within the meaning of Section 107 of the Copyright Act.

This is a victory for Bloomberg, for business and financial journalism, and for those who rely upon access to information relevant to business and investing.

Unfortunately, the Court of Appeals did not also take this opportunity to reverse, or at least criticize, its early holdings in cases in which it afforded copyright protection to unpublished works not intended for publication.

Background. Bloomberg is a financial news and data reporting service. Swatch is a publicly traded company (in Switzerland) that makes watches. It conducted a conference call for invited investment analysts to discuss a just released 2010 earnings report. It invited 333, and 132 participated. Bloomberg, which was not invited, obtained a copy of an audio recording made for Swatch of that conference call without authorization from Swatch. Bloomberg disseminated that copy to paying subscribers within minutes.

Four days later, Swatch filed a complaint (which it later twice amended) in the District Court alleging copyright infringement in violation of 17 U.S.C. § 106. Specifically, it alleged violation of the exclusive rights "to reproduce the copyrighted work" and "to distribute copies or phonorecords of the work to the public".

Swatch filed an application with the Copyright Office (CO) to register a copyright in the sound recording two weeks later. The CO issued a copyright registration after Swatch narrowed the scope to statements made by Swatch executives, and excluding statements and questions by the analysts.

Bloomberg, among other things, asserted the affirmative defense of fair use, and asserted that the sound recording is not copyrightable subject matter. Bloomberg raised these matters by way of a FRCP Rule 12(b)(6) motion. The District Court denied the motion, holding that the sound recording is copyrightable, and that fair use was a fact intensive issue not to be decided on the pleadings.

The District Court then directed Swatch, prior to discovery, to file a brief on the fair use issue. Swatch did so. The District Court then granted, sua sponte, FRCP Rule 56 summary judgment to Bloomberg on the fair use defense. The District Court's opinion is reported at 861 F. Supp. 2d 336.

Swatch appealed the summary judgment on fair use. Bloomberg cross appealed the denial of its motion to dismiss on the copyrightable subject matter issue.

Court of Appeals. The Court of Appeals affirmed the summary judgment on the issue of fair use. The Court of Appeals applied the four prong test of 17 U.S.C. § 107, which provides in full, as follows:

"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
   (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
   (2) the nature of the copyrighted work;
   (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
   (4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

The District Court first held that the first prong (purpose and character of the use) weighs in favor of Bloomberg, because its dissemination of the sound recording "serves an important public interest, for the public is served by the full, timely and accurate dissemination of business and financial news". On appeal, Swatch challenged Bloomberg's assertion that it was engaged in news reporting.

The Court of Appeals held that "the first statutory factor favors fair use here. To begin with, whether one describes Bloomberg’s activities as ``news reporting,´´ ``data delivery,´´ or any other turn of phrase, there can be no doubt that Bloomberg’s purpose in obtaining and disseminating the recording at issue was to make important financial information about Swatch Group available to American investors and analysts. That kind of information is of critical importance to American securities markets." See, pages 16-28.

The District Court next held that the second prong (nature of the copyrighted work) weighs in favor of Bloomberg, because it opined that the copyright was ``thin´´, that is, primarily factual content, and because "the first publication of Swatch Group’s expression occurred prior to" publication of the audio recording by Bloomberg.

On appeal, Swatch argued there was no prior publication. Swatch was, of course, correct. The Court engaged in lengthy semantic gymnastics on this point.

The Court of Appeals conceded that "the sound recording remains statutorily unpublished".

The Court of Appeals wrote that "Swatch is unquestionably correct that the earnings call is unpublished under the definition of ``publication´´ set forth in § 101. But that technical definition does not control our analysis of this aspect of the second fair use factor. While we will consider the statutory definition, we also will not blind ourselves to the fact that Swatch Group invited over three hundred investment analysts from around the globe to the earnings call, out of which over a hundred actually attended."

It concluded, "We accordingly agree with the district court that although the sound recording is statutorily unpublished, because Swatch Group publicly disseminated the spoken performance embodied in the recording before Bloomberg’s use, the publication status of the work favors fair use." See, pages 28-35.

The District Court stated that under the third prong (amount and substantiality of the portion used) when the alleged infringer distributes the entirety of the work, as did Bloomberg, "this generally weighs against fair use".

But, it also found that the public interest in the information contained in the recording "is better served by the dissemination of that information in its entirety, including the incidents of oral speech that do not translate onto the page but color the purely factual content." It stopped short of holding that this factor weighs in favor of a finding of fair use.

The Court of Appeals wrote that "Bloomberg’s use of the entire recording was reasonable in light of its purpose of disseminating important financial information to American investors and analysts. ... Like the district court, we accordingly weigh this factor in neither party’s favor." See, pages 35-38.

The District Court held that the fourth prong (effect of the use upon the potential market) weighs in favor of a finding of fair use because Bloomberg's dissemination did not have "any possible market effect". See, pages 38-42.

The Court of Appeals agreed. It wrote that "the possibility of receiving licensing royalties played no role in stimulating the creation of the earnings call. Indeed, Swatch affirmatively argues that it does not know whether there is a potential market for this kind of recording, and cannot know without obtaining discovery from Bloomberg. The context of the earnings call, moreover, makes perfectly plain that its purpose was to enable Swatch Group executives to disseminate financial information about the company in a way that they believed would be advantageous. It is that calculation of advantageousness, and not the possibility of receiving royalties, that induces Swatch Group and other similarly situated companies to hold earnings calls."

Finally, the Court of Appeals held that "In sum, Bloomberg's use is fair use."

Bloomberg also argued in the District Court that the sound recording at issue is not protected by the copyright laws. The District Court held that it is. Bloomberg filed a cross appeal on this issue. The Court of Appeals held that Bloomberg is not aggrieved by the judicial action from which it appeals, and therefore lacks standing.

Case Information. This case is Swatch Group Management Services Ltd. v. Bloomberg, L.P., U.S. Court of Appeals for the 2nd Circuit, App. Ct. Nos. 12-2412-cv and 12-2645-cv, an appeal from the U.S. District Court for the Southern District of New York, D.C. No. 11-01006, Judge Hellerstein presiding. Judge Katzmann wrote the opinion of the Court of Appeals, in which Judges Kearse and Wesley joined.

1/27. The purpose of this commentary is not to question the finding of fair use in Swatch v. Bloomberg, but rather the analyses employed by the District Court and Court of Appeals to reach their conclusions.

The Courts did not, but could have, reasoned that a finding of fair use is particularly appropriate where journalists, historians, or academics make use of unpublished works that are not intended for publication for the purpose of conveying factual information on matters of public interest.

Bloomberg's use fits squarely into this category. So do many other uses by journalists and others. Yet there are opinions to the contrary that have been roundly criticized by law professors and others.

Copyright exists to promote the Progress of Science and useful arts. It does this by providing an economic incentive to create. By giving "Authors and Inventors the exclusive Right to their respective Writings and Discoveries", they can obtain fees for licensing their Writings and Discoveries. Giving creators rights in unpublished works intended for publication, such as a book weeks before its public release date, is fundamentally important. This can be when the economic value of a work is most vulnerable to diminishment by infringement. In contrast, there is no creation incenting economic interest to protect in unpublished works not intended for publication.

This case involves just such an unpublished work not intended for publication. Swatch had no interest in licensing or selling copies of its audio recording. Bloomberg did nothing to harm any economic interest of Swatch in deriving revenue from this audio recording.

This was a Second Circuit case. It is also the Second Circuit that issued the two leading opinions holding that the courts should extend full copyright protection to unpublished works not intended for publication. These cases are Salinger v. Random House, 811 F.2d 90 (2nd Cir. 1989) and New Age Publications v. Henry Holt, 873 F.2d 576 (2nd Cir. 1989).

There are many academic criticisms of these opinions. See, for example, Landes and Posner, The Economic Structure of Intellectual Property Law, at Chapter 5.

It is unfortunate that this Court did not take this opportunity to reverse, or at least criticize, these opinions. The Court of Appeals did cite (at page 31) both Salinger and Holt, but only to explain why the Congress passed the 1992 amendment to Section 107. The Court neither criticized, nor expressed approval of, either of these opinions.

The holdings of Salinger and Holt are detrimental to the public's interest in learning about matters of public concern, as well as to the journalists and historians who seek to write about these matters.

One significant class of unpublished works not intended for publication is documents containing factual information that are disclosed for the purpose of criticism of corporate management, or whistleblowing of legal violations. Companies and executives sometimes assert copyright in unpublished documents that are not intended for publication, not to protect their economic interest in those documents, but to suppress criticism, to avoid regulatory or criminal investigations, and/or to protect undeserved reputations.

Another significant class of unpublished works not intended for publication is correspondence of public figures on matters of wide public interest. Journalists and historians may have copies of the correspondence, but be unable to publish excerpts, because of Salinger and Holt, without first obtaining permission, which often entails surrendering editorial control to the authors or heirs of the authors of the correspondence.

Indeed, government officials, regulatory agencies, companies, trade groups, and others have a range of tools and tactics, of which copyright is just one, to exclude journalists and others from publishing or using certain works or information. Sometimes the purpose for asserting copyright, or employing some other tactic, is to suppress the dissemination of certain specific information. Sometimes the purpose for asserting a power to exclude is to trade permissions to use information for some editorial control over journalists.

Of course, all of this is fundamentally inconsistent with the free flow of information, free markets, and free expression. Hence, there is an argument that the Courts should not construe the Copyright Act in a manner that facilitates such conduct, while serving none of the underlying purposes of the Copyright Act.

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