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Swatch Group Management Services Ltd. v Bloomberg L.P.

Case No. 12-2412-cv (C.A. 2, Jan. 27, 2014)

Appeal and cross-appeal from a judgment of the United States District Court for the Southern District of New York (Hellerstein, J.), granting summary judgment to the defendant as to the plaintiff’s claim of copyright infringement on the ground that the defendant had engaged in fair use. The plaintiff claims that the defendant, a financial news and data reporting service, infringed the plaintiff’s copyright in a sound recording of a foreign public company’s earnings call with invited investment analysts by obtaining a copy of the recording without authorization and making it available to the defendant’s paying subscribers. We hold, upon consideration of the relevant factors, see 17 U.S.C. § 107, that the defendant’s use qualifies as fair use. We further grant the plaintiff’s motion to dismiss the defendant’s cross-appeal because the defendant lacks appellate standing and we lack appellate jurisdiction.

For the reasons stated below, the defendant’s cross-appeal is DISMISSED, and the judgment of the district court is AFFIRMED.

This case concerns the scope of copyright protection afforded to a sound recording of a conference call convened by The Swatch Group Ltd. (“Swatch Group”), a foreign public company, to discuss the company’s recently released earnings report with invited investment analysts. In particular, we must determine whether Defendant-Appellee Bloomberg L.P. (“Bloomberg”), a financial news and data reporting service that obtained a copy of that sound recording without authorization and disseminated it to paying subscribers, may avoid liability for copyright infringement based on the affirmative defense of “fair use.” 17 U.S.C. § 107. We also must determine whether we have jurisdiction to hear Bloomberg’s cross-appeal on the issue of whether the sound recording of the conference call is copyrightable in the first instance.

Plaintiff-Appellant The Swatch Group Management Services Ltd. (“Swatch”), a subsidiary of Swatch Group, appeals from a judgment of the United States District Court for the Southern District of New York (Hellerstein, J.), which sua sponte granted summary judgment to Bloomberg on Swatch’s claim of copyright infringement on the ground of fair use. On appeal, Swatch argues that the district court’s ruling was premature because Swatch had not yet had the opportunity to take discovery on three issues: (1) whether Bloomberg obtained and disseminated the sound recording for the purpose of “news reporting” or for some other business purpose; (2) Bloomberg’s state of mind when it obtained and disseminated the recording; and (3) whether Bloomberg subscribers actually listen to sound recordings of earnings calls, or instead glean information about such calls by reading written transcripts or articles. Swatch also contends that the district court erroneously concluded that Swatch had published the sound recording before Bloomberg disseminated it. More broadly, Swatch argues that the district court erred in how it evaluated and balanced the various considerations relevant to fair use. For the reasons set forth below, we agree with the district court and hold that, upon consideration of the relevant factors and resolving all factual disputes in favor of Swatch, Bloomberg has engaged in fair use.
 

 

Judge(s): Robert Katzmann
Jurisdiction: U.S. Court of Appeals, Second Circuit
Related Categories: Civil Procedure , Communications
 
Circuit Court Judge(s)
Robert Katzmann
Amalya Kearse
Richard Wesley

 
Trial Court Judge(s)
Alvin Hellerstein

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Jess Collen Collen IP
Kristen Mogavero Collen IP
Joshua Paul Collen IP

 
Defendant Lawyer(s) Defendant Law Firm(s)
John DiMatteo Willkie Farr & Gallagher LLP
Thomas Golden Willkie Farr & Gallagher LLP
Amina Jafri Willkie Farr & Gallagher LLP

 

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on february 10, 2011, after swatch group learned that the recording and for the reasons already explained in our discussion of the first fair use invalid, that ruling of the district court is not properly before us. federal rule of geophysical union, 60 f.3d at 922. here, swatch does not contest that bloomberg _______________ of the writer, but is a report of matters that ordinarily are publici juris; it is the enter summary judgments sua sponte, so long as the losing party was on notice transcript had been made available on bloomberg terminals, swatch group sent interest, for the public is served by the full, timely and accurate dissemination of v. acuff-rose music, inc., 510 u.s. 569, 579 (1994), however, a defendant who incorporated in switzerland and its shares are publicly traded on the swiss stock bloomberg’s preparation or distribution of the written transcript of the earnings 29 sources of information. see generally new york times co. v. united states, 403 u.s. whatsoever. see 17 u.s.c. § 107 (listing “multiple copies for classroom use” 6 while “[t]he immediate effect of our copyright law is to secure a fair return for an nihon, 166 f.3d at 69, or recounted the critical conclusions and predictions from [e]ven within the field of fact works, there are gradations as to the use on summary judgment, see, e.g., ringgold v. black entm’nt television, inc., 126 definition when considering this issue, see, e.g., rotbart v. j.r. o'dwyer co., inc., forms of expression. rather, the call’s sole purpose was to convey financial lack of jurisdiction. with our case law. as we have recognized, a number of courts “have concluded second, to the extent that bloomberg challenges the district court’s considered, it generally contributes little to fair use analysis.” nxivm, 364 f.3d at 23 look at the regional trends, i think you would find many of them. dismissed swatch’s complaint on the ground of fair use, “assum[ing], without had been published. swatch points out that the copyright act contemplates two obtained the recording of the earnings call in violation of swatch group’s express copyright to the plaintiffs). at most, bloomberg’s use had the effect of depriving regulation fd to this case. the regulation merely provides additional support for ltd., 448 f.3d 605, 608 (2d cir. 2006) (quoting castle rock entm’t, inc. v. carol in an opinion and order entered on may 17, 2012, the district court sua such calls by reading written transcripts or articles. swatch also contends that the 45 the district court’s decision on any basis submitted to that court and supported judicial gloss on “the nature of the copyrighted work.” that gloss, of course, is 22 business and financial news.” swatch ii, 861 f. supp. 2d at 340. financial information about a foreign company in order to make that information see garanti finansal kiralama a.s. v. aqua marine & trading inc., 697 f.3d 59, 63–64 27 find transformation by emphasizing the altered purpose or context of the work, motion to dismiss the cross-appeal to the merits panel. 11 permitted and the personal gain the copyright owner will receive if the use is reaped by the secondary user (to the exclusion of broader public benefits), the or could not participate in the call initially, bloomberg simply widened the public or disseminated to the press.” 471 u.s. at 564. like the conference call at issue work” in the context of fair use. the statutory concept of “publication” serves 9 u.s. copyright office to register a copyright in a sound recording of the earnings recording, and cannot know without obtaining discovery from bloomberg. the 20 can show. as courts have long recognized in the context of witness testimony, “’a 4 8-k,” selective disclosure and insider trading, 65 fed. reg. 51,716, 51,724 (aug. companies that convene and record them, nor appreciably alter the incentives for for the reasons stated below, the defendant’s cross-appeal is dismissed, copyright in the earnings call is “at best . . . ‘thin,’” swatch ii, 861 f. supp. 2d at “fair use.” 17 u.s.c. § 107. we also must determine whether we have jurisdiction 26 to whether swatch’s recording was validly copyrightable in the first place. to the (internal citation omitted). rather, “[a]ll [factors] are to be explored, and the compiled or commented on financial news, this case concerns the use of a 102-836, at 4, 9 (1992) (discussing new era publications international, aps v. henry original creation, or instead adds something new, with a further purpose or work favors fair use.” bill graham archives, 448 f.3d at 613. rather, we believe that moreover, “[a]lthough defendants bear the burden of proving that their use was 736 (2d cir. 1991)). resolving all factual disputes in swatch’s favor, we assume here that use determinations at the summary judgment stage where there are no genuine described in § 107,” there is “a strong presumption that factor one favors the smith v. barry, 502 u.s. 244, 248 (1992)). bloomberg’s notice of cross-appeal, filed instructions. but bloomberg’s overriding purpose here was not to “scoop[]” swatch contends that the district court improperly accepted bloomberg’s as the supreme court has observed, “[t]he news element—the information had copied information about municipal bond redemptions compiled by a service. that is sufficient for present purposes. there is likewise no need for (2) the nature of the copyrighted work; all purposes under the copyright act “[e]xcept as otherwise provided in this supersedes the objects of the original creation,” campbell, 510 u.s. at 579 much better. look at the results and margins and what they are doing, newsworthy financial information to american investors and analysts. that kind and magazines are published by commercial enterprises that seek a profit,” article cannot, the recording has independent value, regardless of how many on domestic issuers in no way implies that information about foreign issuers is district court “credited [swatch]’s allegations that [bloomberg] was not swatch is unquestionably correct that the earnings call is unpublished 2011. swatch then twice amended its complaint; the operative pleading thus is john m. dimatteo (thomas h. golden, amina jafri, on the brief), have an interest in obtaining important financial information about companies the copyrighted work. dissemination of important financial information in this case would in effect appellant’s br. 9 (quoting j.a. 153 at 37:25–38:43). plaintiff-counter-defendant-appellant-cross-appellee, relevant market effect is that which stems from [bloomberg]'s use of the original entitled to judgment as a matter of law.” fed. r. civ. p. 56(a). under federal rule stemming from [bloomberg]’s use of such a limited portion of the recording.” id. potential licensing revenues for traditional, reasonable, or likely to be developed argues that the district court improperly denied swatch the chance to develop bloomberg’s use was commercial and did not transform the underlying commentary on the earnings call “to the public,” nor has it ever “offer[ed] to particular actions of the alleged infringer, but also whether unrestricted and swatch argues that this analysis was erroneous because the district court 32 envisioned when it enacted § 107. we therefore will not apply the presumption. omitted). while a transformative use generally is more likely to qualify as fair commercial use without transforming it, bloomberg’s use served the important ii. procedural history work. the district court acknowledged that “this generally weighs against fair insider trading, 64 fed. reg. 72,590, 72,597 (dec. 28, 1999), but the sec 326 (1986) (“[d]istrict courts are widely acknowledged to possess the power to of civil procedure 56(f), district courts have discretion to grant summary the district court’s judgment is affirmed. a group of investment analysts. and while we assume without deciding in this directive that the call “must not be recorded for publication or broadcast,” j.a. primary source that itself was financial news. we find this distinction significant. expression of swatch group's senior officers, not that which stems from crafting that regulation, the sec expressly exempted “foreign private issuer[s]” balancing the four statutory factors together, we conclude that “the 15 function.” id. at 509. we rejected such a rule, finding that it would “distort” with precision not only what swatch group’s executives said, but also how they 10 ramsey v. coughlin, 94 f.3d 71, 74 (2d cir. 1996). in other words, “[d]iscovery 17 u.s.c. § 107. though mandatory, these four factors are non-exclusive. f.3d 244, 251 (2d cir. 2006). the copyright act directs that, in determining under the statutory definition, see diamond v. am-law pub. corp., 745 f.2d 142, afterwards. while bloomberg may be aggrieved by the dismissal of its district court erroneously concluded that swatch had published the sound including the particular modes of expression used by swatch group’s executives, entire earnings call as it was in progress. at the beginning of the call, an operator sound recording at issue here is the latter and not the former. similarly, swatch exempted them from certain u.s. reporting requirements such as forms 10-q and corp., 938 f.2d at 19. here, the may 18, 2012 judgment identified in bloomberg’s p.m. local swiss time, several hours after it had released the earnings report, in judicial gloss on “the nature of the copyrighted work,” by contrast, aims to take among illustrative examples of fair use). f.2d 180, 183 (2d cir. 1981)). available to american investors and analysts, that purpose supports a finding of as evidenced by surrounding commentary or criticism. see, e.g., bill graham and indeed, some core examples of fair use can involve no transformation sound recording are rearranged, remixed, or otherwise altered in sequence or quality.” we find these arguments unpersuasive and hold that the first statutory need to convey information to the public accurately may in some instances make not “aggrieved by the judicial action from which it appeals,” great am. audio copying and dissemination of the recording qualify as fair use. swatch grp. mgmt. 166 f.3d 65 (2d cir. 1999), wainwright securities, inc. v. wall street transcript corp., examples enumerated in § 107 to ‘give some idea of the sort of activities the exempt from regulation fd cannot meet this standard. some other business purpose; (2) bloomberg’s state of mind when it obtained and the copyright laws in the first place. swatch has moved to dismiss the neither party’s favor. 510 u.s. at 590 (quotation marks and alterations omitted). we have described this analysis of swatch group’s earnings call. but by disseminating not just a written 1279, 1286 (2d cir. 1994). assoc. press, 248 u.s. 215, 234 (1918)). swatch’s copyright is exceedingly thin, as the recording is thoroughly factual in swatch group v. bloomberg erred in denying swatch the chance to develop facts in discovery to show that the bloomberg’s lack of good faith likewise merits relatively little weight in first public appearance of [its] expression,” including “when, where, and in what (1984) (finding copying of an entire work to be fair use). that potential is defined as the theoretical market for licensing the very use at and the judgment of the district court is affirmed. commercial nature of bloomberg’s use, we assign it somewhat reduced weight. calls conducted by foreign companies that, like swatch group, are exempt from complaint alleges that, by recording the earnings call and making the recording factors.” congress added this proviso to § 107 in 1992, see pub. l. no. 102-492, which works by foreign authors are protected, see id. § 104(b), and determining taken, the less likely the use is to be fair.” infinity broad. corp. v. kirkwood, 150 its subscribers, such a distinction raises a semantic rather than factual dispute. it users. at the same time, we have recognized that “[a]lmost all newspapers, books bloomberg’s use falls outside of the core notion of “news reporting” congress scope of the claimed copyright. after swatch narrowed the copyright to cover creativity for the general public good.” fogerty v. fantasy, inc., 510 u.s. 517, call. the copyright office and swatch then exchanged a series of emails over the whether “the quantity and value of the materials used are reasonable in relation 479 n.2 (citing campbell, 510 u.s. at 585 n. 18). bloomberg does not dispute that it _______________ reveal any significantly price-sensitive facts during the call that had not already issued a summary order stating that it had “preliminarily granted judgment to audio recordings of earnings calls convened by foreign companies that are on june 28, 2012, designates only the district court’s may 18, 2012 judgment, court’s conclusion that the defendant’s use served a “public function,” we stated archives, 448 f.3d at 609–610; nunez v. caribbean int'l news corp., 235 f.3d 18, works are closer to the core of intended copyright protection than others, with procedures governing the grant of summary judgment independent of a motion, its (2d cir. 2012). summary judgment is appropriate only where the record shows the 1976 copyright act. see harper & row, 471 u.s. at 552–54. opportunity to take discovery on three issues: (1) whether bloomberg obtained that [it] had to come forward with all of [its] evidence.”). before granting ii. bloomberg’s cross-appeal bloomberg’s favor. such a holding would have been novel, as “[n]either our defendant]’s commercial gain and its copying is . . . attenuated” such that it be avoided merely by dubbing the infringement a fair use ‘news report.’” harper we turn first to “the purpose and character of the use.” 17 u.s.c. § 107(1). _______________ which the copyright owner had transformed raw financial information by engage in “an open-ended and context-sensitive inquiry.” blanch v. koons, 467 campbell, 510 u.s. at 579 (internal citations, quotation marks and alterations today subjects swatch group or any other foreign issuer to the requirements of recording of a conference call convened by the swatch group ltd. (“swatch judgment. on june 28, 2012, bloomberg filed a notice of cross-appeal from the 33 of fair use. see harper & row, 471 u.s. at 561 (“news reporting is one of the “is of a commercial nature or is for nonprofit educational purposes,” 17 u.s.c. countervailing weight we would otherwise give to bloomberg’s clandestine must be aggrieved by the judicial action from which it appeals.” great am. audio subscribers to its online financial research service known as bloomberg reaching the issue of copyrightability, we must address swatch’s motion to copying and dissemination of the call was fair use. the district court denied that points out, the securities and exchange commission (“sec”) has mandated that all ambiguities and drawing all reasonable inferences against the moving party. 7 performance embodied in the recording before bloomberg’s use, the publication “unparalleled in scope and depth” and is “delivered to your desktop in real bloomberg obtained a sound recording and written transcript of the call and otherwise would have violated one or more of these exclusive rights may avoid 16 executives then provided commentary about the company’s financial we turn now to “the amount and substantiality of the portion used in infringement of copyright.” necessary in light of bloomberg’s purpose. finally, we are confident that this type compiling it from multiple sources or by mixing it with their own commentary of activity, whose protection lies at the core of the first amendment, would be calls. 46 for the foregoing reasons, bloomberg’s cross-appeal is dismissed, and find that the second statutory factor strongly favors fair use. [a][2][b][ii] (“if the author does not seek confidentiality, fair use is not graham archives, 448 f.3d at 608 (quoting castle rock, 150 f.3d at 141). although to submit “a brief regarding the existence of any triable issues of material fact dep't of justice, 494 f.3d 296, 305 (2d cir. 2007). the second statutory fair use factor concerns “the nature of the very edge of copyright’s protective purposes. in light of that fact, as well as fair use must also take account of the transformativeness of the use—that they must make it available to the public immediately. see regulation fd, 17 courts might regard as fair use under the circumstances.’” (quoting s. rep. no. group executives explaining the company’s financial performance and outlook to yun zhang v. ins, 386 f.3d 66, 73–74 (2d cir. 2004) (quoting regina v. bertrand, with respect to defendant’s fair use affirmative defense.” id. swatch did so, with the district court that although the sound recording is statutorily fair use. declaratory counterclaim, which arguably would have enlarged bloomberg’s this argument, however, misapprehends the limited relevance of irrelevant to american markets. indeed, swatch group recognized as much by i. factual background district court to have affirmatively weighed the third statutory fair use factor in educational purposes,” id.; whether the use is “transformative” or “merely _______________ results weighed together, in light of the purposes of copyright.” campbell, 510 moreover, to the extent that a financial news or research organization use will be considered fair.” am. geophysical union v. texaco inc., 60 f.3d 913, 922 call must not be recorded for publication or broadcast.” j.a. 22. swatch group’s made by the operator or the questions posed by the analysts, the copyright the district court and hold that, upon consideration of the relevant factors and 2 joshua paul (jess m. collen, kristen mogavero, on the brief), financial news and data reporting service that obtained a copy of that sound into action.” id. 640. the determination of fair use is a mixed question of fact and law. harper & the library of congress, see 17 u.s.c. § 407, measuring the copyright term for recordings or instead by reading a written transcript or article. so. while in general, “[s]tatutory definitions control the meaning of statutory research reports about major industrial and financial corporations, wainwright, considerations relevant to fair use. for the reasons set forth below, we agree with not transform swatch’s work through additional commentary or analysis does is undisputed that bloomberg gave subscribers access to the full, unaltered sound judgment to the defendant as to the plaintiff’s claim of copyright infringement on liability if he can establish that he made “fair use” of the copyrighted material. are undisputed unless otherwise noted. swatch group’s investor relations department. swatch group held the call at 2 there is no “per se rule barring any fair use of unpublished works.” h.r. rep. no. group’s expression occurred prior to [bloomberg]’s publication of the infringing language, his confidence or precipitancy, his calmness or consideration.’” zhou f.2d 90 (2d cir. 1987)). while this proviso indicates by clear implication that bloomberg was fully aware that its use was contrary to swatch group’s bloomberg’s cross-appeal accordingly is dismissed for lack of standing and 25 word “publish” appears in the text of the second fair use factor in § 107. whether defendants had not supplemented or otherwise transformed the plaintiffs’ swatch argues that this conclusion was error for several reasons. first, copyrighted work.” 17 u.s.c. § 107(2). this factor accounts for the fact that “some at swatch group’s request, an audio conferencing vendor recorded the ultimately “determined to exempt foreign private issuers . . . as it has in the past professional provides “[a] massive data stream” with “rich content” that is relation to the copyrighted work as a whole.” 17 u.s.c. § 107(3). this factor asks f.3d 104, 109 (2d cir. 1998). it is undisputed here that bloomberg used the entire use,” but found that the public interest in the information contained in the inquiry into a work’s publication status is relevant to fair use, it in no way limits security—does not give rise to a right for it to control who breaks that news and the first dissemination of its executives’ expression to the public. in addition, copyright law’s goal of promoting the progress of science and useful arts would call lasted 132 minutes; swatch group executives spoke for approximately 106 of begins to partake of circular reasoning. as professor nimmer has observed, “it is prepare derivative works of, and distribute copies of” the copyrighted work. (“swatch”), a subsidiary of swatch group, appeals from a judgment of the factor favors fair use here. to begin with, whether one describes bloomberg’s the extent to which one must permit expressive language to be history of the day.” harper & row, 471 u.s. at 556 (quoting int’l news serv. v. status of the work favors fair use. “defendant’s use qualifies as fair use.” j.a. 581. later that day, the district court the district court weighed this factor in favor of fair use, noting that “the this instance. court for the southern district of new york (hellerstein, j.), granting summary designate the judgment, order, or part thereof being appealed.” this requirement copyright owner’s right to prepare derivative works based on a sound recording “is deciding, . . . that [swatch]’s copyright is valid.” swatch ii, 861 f. supp. 2d at 338. & row, 471 u.s. at 557. but here, in light of the independent informational value plaintiff-appellant the swatch group management services ltd. never been published. simply put, swatch has never, before or after bloomberg’s the swatch group management services ltd., to evaluate whether a particular use qualifies as “fair use,” we must recording was reasonable in light of its purpose of disseminating important had been published at the time of bloomberg’s use. see id. (citing cases). the proviso cautioning that “[t]he fact that a work is unpublished shall not itself bar a lacks appellate standing and we lack appellate jurisdiction. 18 information about swatch group to analysts and investors around the world. while the loss of a potential yet untapped market can be cognizable under methods and the commercial, nontransformative nature of its use.3 liquidity, functionalities and execution services that you need to put knowledge b. nature of the copyrighted work faith, see nxivm, 364 f.3d at 478; and whether the defendant engaged in “news cross-appeal on the grounds that bloomberg lacks appellate standing and we lack c. amount and substantiality of the portion used so we’re not looking desperately for someone else, but i can tell you that motion in an order entered on august 30, 2011. swatch grp. mgmt. servs. ltd. v. we accordingly agree with the district court that, balancing the public cross-appeal. see int'l ore & fertilizer corp. v. sgs control servs., inc., 38 f.3d the television viewing audience” and therefore would not impair the value of the aggrieved by the district court’s dismissal of swatch’s complaint on the ground having resolved swatch’s main appeal on the ground of fair use without 13, 2012, upon receipt of a letter from swatch, the clerk reinstated the appeal. use, “distribut[ed]” a cd or other “material object” embodying the spoken stimulating the creation of the earnings call. indeed, swatch affirmatively argues important public purpose underlying bloomberg’s use overcomes the distribute” a phonorecord of the call to any “group of persons for purposes of activities as “news reporting,” “data delivery,” or any other turn of phrase, there in its capacity to convey important information about the company to interested 42 would be of no benefit,” such that “the record . . . reflect[s] the losing party's not preclude a finding that the “purpose and character” of bloomberg’s use reasons stated in the court’s opinion and order dated may 17, 2012, judgment is facts relevant to bloomberg’s state of mind. swatch acknowledges that the this first factor accordingly favors fair use. § 107(1), and we have held that “[t]he greater the private economic rewards the creation of original expression. in sum, bloomberg’s use is fair use. prejudice to reinstatement under local rule 42.1, the district court issued an conference call with an invited group of financial analysts, as is its custom. swiss far outweighed by the public interest in the dissemination of important financial defendant on the basis that if defendant’s alleged actions constitute attended. thus, even though the sound recording remains statutorily 22–23 (1st cir. 2000). here, bloomberg provided no additional commentary or suwanee fruit & s.s. co., 336 u.s. 198, 201 (1949)), in this case, no variant of the to the copyrighted work as a whole; and our consideration of that issue to the statutory definition of “publication” in swatch or “supplant the copyright holder’s commercially valuable right of first corp. v. metacom, inc., 938 f.2d 16, 19 (2d cir. 1991), and therefore lacks standing. it desirable and consonant with copyright law for a defendant to faithfully more likely the first factor will favor the copyright holder and the less likely the nature. indeed, the whole purpose of the conference call was to convey financial recording of the earnings call. in an agreement signed by representatives of without authorization and making it available to the defendant’s paying and that bloomberg professional is a subscription service available to paying second amended complaint for failure to state a claim, arguing inter alia that the ‘author’s’ creative labor,” the “ultimate aim is, by this incentive, to stimulate the following facts are drawn from the record before the district court and attend. accordingly, contrary to swatch’s suggestion, nothing in our decision significantly price-sensitive facts during the call. here, swatch group did not potential market, as yet untapped by swatch, for recordings of exempt earnings as stated, swatch filed its initial complaint in this action on february 14, (quotation marks and brackets omitted); whether the defendant acted in good swatch group and swatch on february 14 and 15, 2011, swatch group assigned recordings, or instead by reading written transcripts or articles. more broadly, bloomberg itself has characterized its bloomberg professional service as favors fair use. permitted to take discovery into whether bloomberg professional subscribers professional. according to bloomberg’s promotional materials, bloomberg recording of swatch group’s earnings call as part of its paid financial research and you should ask the other companies out there, even big players, if the through-and-through factual nature of the earnings call places it at the recording without authorization and disseminated it to paying subscribers, may address the “fact-intensive” questions implicated by bloomberg’s fair use defense 19 following the procedures set out in rule 56[(a)–(e)] would not alter the outcome.” servs. ltd. v. bloomberg l.p. (“swatch ii”), 861 f. supp. 2d 336 (s.d.n.y. 2012). on important financial information. in nihon and wainwright, we stressed that the their favor.” nxivm corp. v. ross inst., 364 f.3d 471, 476–77 (2d cir. 2004) “after identifying for the parties material facts that may not be genuinely in 1995), we cannot reasonably read bloomberg’s notice of cross-appeal to plaintiff’s copyright in a sound recording of a foreign public company’s earnings the defendant, a financial news and data reporting service, infringed the in the context of news reporting and analogous activities, moreover, the court nor any of our sister circuits has ever ruled that the copying of an entire its interest in the copyright to its subsidiary swatch. appeal that the call contained sufficient original expression—in the form of the but color the purely factual content.” swatch ii, 861 f. supp. 2d at 342. which did not resolve bloomberg’s counterclaim. as the may 17, 2012 opinion arista records llc v. doe 3, 604 f.3d 110, 117 (2d cir. 2010) (citing 17 u.s.c. § 101. to the contrary, the proviso directs that if we find a work to be moreover, rights, including the rights to “reproduce, perform publicly, display publicly, the fourth fair use factor, the potential market here is defined so narrowly that it recording remains technically unpublished under § 101, swatch group controlled _______________ infringement, they are protected as fair use.” id. 584. the order directed swatch including “whether [the] use is of a commercial nature or is for nonprofit a whole favored fair use because “[bloomberg]’s work as a prominent gatherer previous cases concerned the appropriation of secondary sources that had 2011). as we have already explained, we see nothing mistaken in that finding. 41 “thinness” of swatch’s exclusive rights—as well as whether or not the recording is, the degree to which “the new work merely supersedes the objects of the expression,” harper & row, 471 u.s. at 564, which in turn forms part of our that where a financial research service obtains and disseminates important recordings of earnings calls is but one small part. moreover, it would strain like bloomberg as private enforcers of u.s. public disclosure rules. dismiss bloomberg’s cross-appeal. that motion is granted, for two reasons. necessarily precluded even as to an unpublished work.”).4 we accordingly agree time,” as well as “access to all the news, analytics, communications, charts, judgment sua sponte “[a]fter giving notice and a reasonable time to respond” and and publisher of business and financial information serves an important public the discovery swatch seeks would not alter our analysis. with respect to 8 recording before bloomberg disseminated it. more broadly, swatch argues that the legal effect of registration, see id. §§ 410(c), 412. see also 1 nimmer on at 343, but argues that swatch should have been able to take discovery into bloomberg’s favor because, as it also argued with respect to the first fair use 40 the copyright act of 1976 grants copyright holders a bundle of exclusive the public benefit of providing the information contained in the call to american that induces swatch group and other similarly situated companies to hold question would serve the goals of copyright, blanch, 467 f.3d at 251. public purpose, also reflected in regulation fd, of ensuring the wide were themselves pieces of financial information. in other words, while our we alter the reasons underlying it.” allstate ins. co. v. a.a. mcnamara & sons, inc., regulation fd would have applied to such issuers, see selective disclosure and subscribers. we hold, upon consideration of the relevant factors, see 17 u.s.c. markets.” am. geophysical union, 60 f.3d at 930–31. the hypothesized market for are copied.” campbell, 510 u.s. at 586. as relevant here, this factor requires us to the final fair use factor considers “the effect of the use upon the potential “that there is no genuine dispute as to any material fact and that the movant is context of the earnings call, moreover, makes perfectly plain that its purpose was united states court of appeals this case. “[w]hile the good or bad faith of a defendant generally should be performance and answered questions posed by fifteen of the analysts. the entire order dismissing as moot all of bloomberg’s counterclaims, including the there are many companies out there who would like to benefit from the avoid liability for copyright infringement based on the affirmative defense of a proposition that would be clear in any event: american investors and analysts 21 the cross-appeal. a cross-appeal. while “we construe notices of appeal liberally, taking the parties’ a. purpose and character of use promoting the progress of science and useful arts would be better served by unpublished, it is clear that swatch was not deprived of the ability to “control the professional is a multifaceted research service, of which disseminating sound opinion and order, in turn, had explained that “since [bloomberg]’s use qualifies 38 finally, on january 14, 2013, the motions panel of this court referred swatch’s finding of fair use if such finding is made upon consideration of all the above earnings report with invited investment analysts. in particular, we must embellished maps and directories to elegantly written biography. of fair use, and therefore “is not entitled to cross-appeal,” id. 341, nor could it. it is well established that “the scope of fair use is greater with been revealed in its previously released report. in advance of the call, swatch swatch also contends that it was improperly denied the opportunity to may 18, 2012, the clerk of the district court entered judgment “in favor of 1 swatch has disclaimed any such challenge in light of 17 u.s.c. § 114(b), under which a multiple copies for classroom use), scholarship, or research, is not an recording “is better served by the dissemination of that information in its c.f.r. § 243.100. at a minimum, a use of copyrighted material that serves this row publishers, inc. v. nation enters., 471 u.s. 539, 560 (1985). while we have at which it denied swatch’s motion and explained that, in the court’s view, financial information to american investors and analysts. the recording has limited to the right to prepare a derivative work in which the actual sounds fixed in the copyrightable, the purpose of the call was not in any sense to showcase those whether bloomberg knew at the time that obtaining and publishing the recording conclusion cold transcript contains only the dead body of the evidence, without its spirit,’” made them both available online, without alteration or editorial commentary, to make news—by issuing a [report] that is likely to affect the market price of a reporting” or another activity illustratively listed in § 107 as indicative of fair use, l.r. [1867] 1 l.r.p.c. 520, 535), overruled on other grounds by shi liang lin v. u.s. regulation fd. nor do we hold that a foreign issuer’s failure to follow regulation because it seeks a decision not only as to whether its use was fair use, but also as no. 94 civ. 2091 (jsm), 1995 wl 46625, at *4 (s.d.n.y. feb. 7, 1995) (finding that counterclaim for a declaration that swatch’s copyright is invalid. on november purposes of further distribution, public performance, or public display.” 17 discussion subject of an appeal, and thus we have no jurisdiction to review it. resolve how many of bloomberg’s subscribers chose to listen to the sound and order incorporated into the judgment makes plain, the district court simply appeal and cross-appeal from a judgment of the united states district bloomberg’s counterclaims as moot. bloomberg never filed any additional or widespread conduct of the sort engaged in by the defendant would result in a transcript or article but an actual sound recording, bloomberg was able to convey seizing on bloomberg’s citation to regulation fd, swatch protests that in defendant.” nxivm, 364 f.3d at 477 (quoting wright v. warner books, inc., 953 f.2d 731, public purpose is very closely analogous to “news reporting,” which is indicative subscribers glean information about earnings calls by listening to audio earnings call was not copyrightable in the first place and that bloomberg’s 37 factor, there are genuine disputes of material fact regarding whether bloomberg the district court further found that any conceivable effect was outweighed by service, inc. (“fii”), 751 f.2d 501 (2d cir. 1984), on which swatch relies, are not to court found “[n]othing in the record [that] suggests any possible market effect those minutes. defendant.” j.a. 7. (4) the effect of the use upon the potential market for or value of “publi[shed]” under § 101. earnings calls. inability to enhance the evidence supporting its position and the winning party's calculation of advantageousness, and not the possibility of receiving royalties, 24 however, the district court informed the parties of its belief that it could resolve affiliated with the vendor welcomed the analysts to the call and told them, “this 24, 2000). swatch thus argues that giving weight to a public interest in the information. as we recently observed in a related context, “a [f]irm's ability to 2 although ramsey was decided before rule 56 was amended in 2010 to provide express u.s.c. § 107, which provides that “the fair use of a copyrighted work . . . for definition does not control our analysis of this aspect of the second fair use factor. recording at issue was to make important financial information about swatch harper & row, 471 u.s. at 563 (quoting robert a. gorman, fact or fancy? the swatch insists that because the definitions in § 101 by their terms apply for circular reasoning,” our case law limits our consideration to a use’s “impact on b e f o r e : statutory definition and the judicial gloss on “the nature of the copyrighted 1983), and have discounted this consideration where “the link between [the “requires courts to consider not only the extent of market harm caused by the reversed district courts that too hastily resolved factual questions relevant to fair (2d cir. 1994). it is undisputed here that bloomberg is a commercial enterprise united states district court for the southern district of new york (hellerstein, despite bloomberg’s use of the entire recording because of the public interest in violated swatch group’s directive. swatch also argues that it should have been or lending,” or “offering to distribute . . . phonorecords to a group of persons for issues of material fact.” blanch, 467 f.3d at 250 (quoting castle rock entm’t, 150 resolving all factual disputes in favor of swatch, bloomberg has engaged in fair recording in question rather than read a written transcript or article. as we have intentions into account,” shrader v. csx transp., inc., 70 f.3d 255, 256 (2d cir. plaintiff-counter-defendant-appellant-cross-appellee. listen to sound recordings of earnings calls, or instead glean information about 43 the conference call is copyrightable in the first instance. “material objects in which sounds . . . are fixed . . . and from which the sounds be better served by allowing [bloomberg’s] use than by preventing it.” bill words,” burgess v. united states, 553 u.s. 124, 129 (2008) (quoting lawson v. use, “transformative use is not absolutely necessary for a finding of fair use,” id., factor weighs in favor of fair use. j.), which sua sponte granted summary judgment to bloomberg on swatch’s claim works, but had instead simply translated japanese business articles into english, an unfixed, undisseminated talk, delivered publicly, had been “de facto to the fact that swatch group invited over three hundred investment analysts hereby entered in favor of [bloomberg].” special app. 13. the may 17, 2012 swatch group of the ability to know and control precisely who heard the call. but can be perceived, reproduced, or otherwise communicated.” id. applying these bloomberg’s use. section 107 expressly directs courts to consider whether the use supplemental notice of appeal designating that subsequent order as the subject of consumers union of u.s., inc. v. gen. signal corp., 724 f.2d 1044, 1049 (2d cir. docket nos. 12-2412-cv, 12-2645-cv office issued a registration on april 27, 2011. available to the public, bloomberg infringed swatch’s exclusive rights “to in bloomberg’s notice of appeal was entered in bloomberg’s favor, bloomberg is to enable swatch group executives to disseminate financial information about 22, and, resolving all factual disputes in swatch’s favor, we must assume (1) the purpose and character of the use, including whether such § 107, that the defendant’s use qualifies as fair use. we further grant the publi’g grp., 150 f.3d 132, 141 (2d cir. 1998)) (ellipsis omitted). copyright § 4.01 (explaining the significance of publication). publication as a defendants who purported to be serving the public by providing access to unsubstantiated claim that it had engaged in “news reporting.” swatch notes that or not a work was published thus enters into our analysis of this factor as a background following passage, for example: statutory factors, including “the nature of the copyrighted work,” cannot end of use will neither significantly impair the value of earnings calls to foreign 31 rights, we have no jurisdiction to review it in the absence of a proper swatch does not challenge the district court’s determination that swatch’s 44 in addition, bloomberg cross-appeals from the same judgment of the 35 willkie farr & gallagher llp, new york, ny, for katzmann, chief judge, kearse, and wesley, circuit judges. authorized to access the earnings call and that [bloomberg]’s publication of the the information embodied in the recording. that holding is entirely consistent appellate procedure 3(c)(1)(b) provides that a notice of appeal “must . . . unpublished, because swatch group publicly disseminated the spoken must either have been completed, or it must be clear that further discovery amendments) (“subdivision (f) brings into rule 56 text a number of related procedures 39 counterclaim for a declaration that swatch’s copyright is invalid, bloomberg 36 publication,” harper & row, 471 u.s. at 562, but rather simply to deliver 3 refused. on february 14, 2011, swatch then filed its initial complaint against we are unpersuaded. as an initial matter, we do not understand the two weeks later, on march 2, 2011, swatch filed an application with the limiting our consideration of a work’s publication status to the statutory that the district court’s ruling was premature because swatch had not yet had the independent informational value over and above the value of a written transcript exchange, swatch group is governed by swiss securities law and the listing rules “open-ended and context-sensitive inquiry” into whether allowing the use in certain categories of works, see id. § 302(c)–(e), setting the circumstances under purposes such as criticism, comment, news reporting, teaching (including 4 indeed, in discussing the relevance of publication to fair use in harper & row, the call.1 notice of appeal as the subject of the cross-appeal provides simply: “[f]or the 30 at an in-court conference held two weeks later on september 16, 2011, under the definition of “publication” set forth in § 101. but that technical and disseminated the sound recording for the purpose of “news reporting” or for the district court erred in how it evaluated and balanced the various cases); see also sony corp. of am. v. universal city studios, inc., 464 u.s. 417, 449–55 information about the company to investors and analysts.5 definitions, swatch contends that the sound recording of the earnings call has company’s financial performance during the prior year. because swatch group is work.” swatch ii, 861 f. supp. 2d at 341. the request for discovery into whether bloomberg delivered “news” or “data” to to the purpose of the copying.” campbell, 510 u.s. at 586 (internal citations and u.s.c. § 101 (defining “publication”). “phonorecords,” in turn, are defined as executive officer, chief financial officer, and three other senior executives defendant-counter-claimant-appellee-cross-appellant. 12 market for or value of the copyrighted work.” 17 u.s.c. § 107(4). this factor of a work to the public by sale or other transfer of ownership, or by rental, lease, found that the recording was copyrightable, id. at 638–39, and declined to the case through a motion for judgment on the pleadings, and directed swatch to fd prevents it from enforcing its copyrights in the united states. we merely hold explained, because the sound recording conveys information that a transcript or appellate jurisdiction. that motion is granted. because the judgment designated said it. this latter type of information may be just as valuable to investors and in all three of these cases, however, the defendants appropriated works in might be willing to pay to obtain such recordings, we must bear in mind that call in audio or written format.” j.a. 294. any discovery thus would concern a whether a particular use is fair, “the factors to be considered shall include”: district court, urging us to hold that swatch’s sound recording is not protected by recording, as opposed to a written transcript or article, served the public interest. similarly, although the district court later dismissed as moot bloomberg’s further discovery into bloomberg’s good or bad faith, for we, like the district approximately 132 analysts joined the call. for swatch group’s part, its chief 13 we review a district court’s grant of summary judgment de novo, resolving on may 20, 2011, bloomberg moved under rule 12(b)(6) to dismiss the summary judgment remain good law. see fed. r. civ. p. 56, advisory comm. notes (2010 take discovery into the existence of a market for audio recordings of earnings this case concerns the scope of copyright protection afforded to a sound or article, regardless of how many bloomberg subscribers took advantage of that products, the[] know how, the management capabilities of swatch group. credulity to suggest that providing access to swatch group’s earnings call more that it does not know whether there is a potential market for this kind of 94-473, at 61 (1975)). we agree with the district court, moreover, that this there. only the statements made by swatch group executives, and not the statements collen ip, ossining, ny, for _______________ the work to the public.” 17 u.s.c. § 106(1), (3). swatch does not challenge and while bloomberg used the recording in its entirety, doing so was reasonably group of analysts, provided that the company does not disclose non-public, 144, 148 (2d cir. 1984), and courts in fact commonly look past the statutory plaintiff’s motion to dismiss the defendant’s cross-appeal because the defendant by the record,” id. (quoting great am. audio corp., 938 f.2d at 19), it is not 12-2412-cv (l) § 106). because copyright law recognizes the need for “breathing space,” campbell definition, moreover, would obscure the different purposes served by the proper fair use analysis. id. file such a motion. swatch moved as directed on october 21, 2011, and entitlement to judgment.” id.2 regulation fd. swatch admitted in its answer to bloomberg’s counterclaims that methods of publishing an audio recording: “the distribution of . . . phonorecords delivering both financial “news” and “data,” and argues that the district court thus vary from case to case. how.” barclays capital inc. v. theflyonthewall.com, inc., 650 f.3d 876, 907 (2d cir. fair, they need not establish that each of the factors set forth in § 107 weighs in earnings call. nevertheless, within several minutes after the call ended, actually choose to access information about earnings calls by listening to substantially adverse impact on the potential market for the original.” campbell, infringing work violated [swatch group’s] directive,” swatch ii, 861 f. supp. 2d a given in every fair use case that plaintiff suffers a loss of a potential market if group available to american investors and analysts. that kind of information is court, have resolved that subfactor in swatch’s favor. we also see no need to they would not think that—being part of the swatch group, they will do swatch argues that the district court gave insufficient weight to the fact that account of “the author’s right to control the first public appearance of his the district court found this factor neutral, refusing to weigh it in swatch’s favor would be misleading to characterize the use as “commercial exploitation.” am. favors fair use even though the work in question was technically unpublished though of common-law origin, the doctrine of fair use is now codified at 17 17 defendant-counter-claimant-appellee-cross-appellant. copied, in order to assure dissemination of the underlying facts, will and analysis. here, by contrast, the statements captured in the sound recording, sponte granted summary judgment to bloomberg, finding that bloomberg’s on august 27, 2012, after the parties had filed a stipulation of dismissal without of copyright infringement on the ground of fair use. on appeal, swatch argues whose securities are traded in american markets. the fact that the sec has again assumed that affording american investors and analysts access to the like swatch group that are “incorporated or organized under the laws of [a] implications for copyright, 29 j. copyright soc’y 560, 561 (1982)). respect to factual than non-factual works.” new era publ’ns, 904 f.2d at 157. holt & co., inc., 873 f.2d 576 (2d cir. 1989), and salinger v. random house, inc., 811 katzmann, chief judge: copyright was “at best . . . ‘thin’” and because “the first publication of swatch erase foreign issuers’ exemption from regulation fd and set up organizations recording. [bloomberg]'s work as a whole.” swatch ii, 861 f. supp. 2d at 342. the district district court determined that this factor favored fair use because swatch’s of critical importance to american securities markets. indeed, as bloomberg consider the extent of swatch’s copyright in the recording—the “thickness” or firmly grounded in fair use’s common law origins and the legislative history of put differently, the “value” of the copyrighted expression for swatch there can be no doubt as to the manifestly factual character of the earnings investment analysts. by making the recording available to analysts who did not as fair use, [bloomberg] has not infringed, and [swatch]’s second amended investors and analysts. id. our decisions in nihon keizai shimbun, inc. v. comline business data, inc., of the swiss exchange. in accordance with those rules, swatch group filed its supreme court indicated that “even substantial quotations might qualify as fair use in a can be no doubt that bloomberg’s purpose in obtaining and disseminating the it “did not seek to profit from the publication of the february 8, 2011 earnings further distribution, public performance, or public display.” analysts as the former, since a speaker’s demeanor, tone, and cadence can often extent bloomberg contends that swatch’s complaint should be dismissed on the form” it appeared. harper & row, 471 u.s. at 564. allowing the use than by preventing it.” bill graham archives v. dorling kindersley reproduce an original work rather than transform it. in such cases, courts often 558 f.2d 91 (2d cir. 1977), and financial information, inc. v. moody's investors call with invited investment analysts by obtaining a copy of the recording 28 after it released this information to the public, swatch group held a dispute.” fed. r. civ. p. 56(f), (f)(3); see also celotex corp. v. catrett, 477 u.s. 317, and “cannot reveal . . . ‘[the speaker’s] hesitation, his doubts, his variations of for the second circuit “unpublished,” however that term is understood, our analysis of the four bar.” 4 nimmer on copyright § 13.05[a][4]. to guard against this “vice of (argued: october 21, 2013 decided: january 27, 2014) factor as “requir[ing] a balancing of ‘the benefit the public will derive if the use is when american companies disclose this kind of material nonpublic information, call in this case. the entire copyrighted portion of the call consists of swatch here, a publicly delivered speech would not, by the mere fact of its public delivery, be group in this case lay not in its capacity to generate licensing royalties, but rather quotation marks omitted). in general, “the more of a copyrighted work that is that have grown up in practice.”). benefits of the use against the potential private royalties lost, the fourth statutory participated in the call from the company’s offices in switzerland. bloomberg a cease-and-desist letter demanding that they be removed. bloomberg audience of the call, which is consistent with swatch group’s initial purpose. cf. use. executives’ tone, cadence, accents, and particular choice of words—to be and italian) on the investor relations section of its website. (1975)). here, the possibility of receiving licensing royalties played no role in on a motion to dismiss, id. at 641. —v.— on february 8, 2011, swatch group released its 2010 earnings report, a purposes; value in this instance. like the district court, we accordingly weigh this factor in it was not until august 27, 2012, that the district court issued an order dismissing 47 see harper & row, 471 u.s. at 561. below, the district court found that this factor as bloomberg l.p. (“swatch i”), 808 f. supp. 2d 634 (s.d.n.y. 2011). the district court law permits public companies to hold this kind of earnings call with a limited than trivially affected the value of that service. so while we will not ignore the 558 f.2d at 93 & n.1. in fii, we rejected a fair use defense by a ratings agency that a television program in order to view it in its entirety at a later time—“enlarges swatch group’s prior dissemination of its executives’ copyrighted expression, we different character, altering the first with new expression, meaning, or message.” neither bloomberg nor any other press organization was invited to the earnings report with the exchange before trading opened for the day, and 14 526–27 (1994) (quoting twentieth century music corp. v. aiken, 422 u.s. 151, 156 swatch stands on firmer ground when it stresses the commercial nature of this statutory factor encompasses within it a number of distinct considerations, 1 f.3d 133, 137 (2d cir. 1993). while bloomberg “is entitled to urge that we affirm bloomberg argues that it is aggrieved by the may 18, 2012 judgment f.3d at 137) (ellipsis omitted). group”), a foreign public company, to discuss the company’s recently released u.s. at 578. “the ultimate test of fair use is whether the copyright law’s goal of same judgment, and on july 24, 2012, swatch moved to dismiss the cross-appeal. never filed an additional notice of appeal identifying that subsequent order as the for information, the paid delivery of goods to that market rises to a public seven-page compilation of financial figures and textual narrative about the that such copying does not necessarily weigh against fair use because copying denied.’” bill graham archives, 448 f.3d at 613 (quoting mca, inc. v. wilson, 677 5 dismissal of its counterclaim seeking a declaration that swatch’s copyright is 3 we have held that where “the allegedly infringing work fits the description of uses crippled if the news media and similar organizations were limited to authorized to be sure, “[t]he promise of copyright would be an empty one if it could complaint should be dismissed.” swatch ii, 861 f. supp. 2d at 343. factor, we agree with the district court that bloomberg’s use of the entire respecting current events contained in the literary production—is not the creation order to allow european, american, and asian analysts to participate. in the end, title,” 17 u.s.c. § 101, the statutory definition of “publication” must control. not is “jurisdictional in nature.” gonzales v. thaler, 132 s. ct. 641, 652 (2012) (quoting entirety, including the incidents of oral speech that do not translate onto the page to the extent the text of § 107 mentions publication, it is only in a closing bloomberg opposed. the district court held oral argument on december 12, 2011, reproduce the copyrighted work” and “to distribute copies or phonorecords of the consequence that fair use is more difficult to establish when the former works sony, 464 u.s. at 421 (noting that the fair use known as “timeshifting”—recording pointing out that it had taken no discovery in the action. f.3d 70, 81 (2d cir. 1997), “this [c]ourt has on a number of occasions resolved fair august term, 2013 while we will consider the statutory definition, we also will not blind ourselves 5 even the portions of the call swatch quotes as demonstrating the originality of the accordingly, we affirm the judgment of the district court, and we dismiss whatever cognizable interest swatch group has in maintaining that ability, it is published” for purposes of fair use); see also 4 nimmer on copyright § 13.05 group sent invitations to all 333 financial analysts who were registered with on june 14, 2012, swatch filed a timely notice of appeal from that numerous purposes, such as triggering the requirement to deposit a copy with bloomberg l.p., elucidate his or her true beliefs far beyond what a stale transcript or summary chosen not to require foreign issuers to follow certain disclosure rules imposed that to so hold “would, it seems to us, state a rule that whenever there is a market relative proportion of fact and fancy. one may move from sparsely 106 stat. 3145 (1992), to clarify, in response to certain decisions of this court, that from around the globe to the earnings call, out of which over a hundred actually bloomberg obtained the recording without authorization and put it to bloomberg subscribers chose to avail themselves of that independent value in bloomberg in this action claiming infringement of its copyright in the sound inherent in a faithful recording of the earnings call, the fact that bloomberg did use is of a commercial nature or is for nonprofit educational bloomberg “is not urging that we alter the judgment in any way, but rather that d. effect upon the market for or value of the original swatch argues that the district court erred in concluding that the recording to hear bloomberg’s cross-appeal on the issue of whether the sound recording of i. fair use first, it is axiomatic that “[i]n order to have standing to appeal, a party statements regarding the care a district court must take before sua sponte granting dissemination of important financial information. moreover, although the competing financial publisher. fii, 751 f.2d at 502–03. criticizing the district the contrary. in those cases, we rejected fair use arguments pressed by the company in a way that they believed would be advantageous. it is that review of a published work or a news account of a speech that had been delivered to the determine whether defendant-appellee bloomberg l.p. (“bloomberg”), a ground of copyright invalidity in addition to or instead of the ground of fair use, contemplate review of an order that did not issue until nearly two months the ground that the defendant had engaged in fair use. the plaintiff claims that simultaneously posted the report in four languages (english, german, french, this is not the first time that we have found that the second statutory factor summary judgment sua sponte, however, a district court “must assure itself that scheduling its earnings call at a time when american analysts would be able to swatch argues that the district court improperly resolved this factor in executives’ statements are overwhelmingly factual in nature. swatch points to the e. balance of factors the entirety of a work is sometimes necessary to make a fair use.” id. (citing disseminated the recording; and (3) whether bloomberg subscribers actually 713 (1971). foreign country.” 17 c.f.r. §§ 243.101(b), 230.405. in fact, as initially proposed, (3) the amount and substantiality of the portion used in relation the second amended complaint, filed on may 10, 2011. the second amended 34


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