The New News
Fly admitted to copyright infringement but denied the claim that it participated in “hot news” misappropriation.191 In order to determine whether Fly misappropriated the financial firms’ recommendations, the court considered each element of misappropriation as set forth in NBA v. Motorola.192 After going through each of the factors individually, the court determined that Fly was liable for “hot news” misappropriation under New York law.193 The court then entered an injunction against Fly to prevent Fly from disseminating the financial firms’ recommendations within one half-hour of the market opening or two hours after the recommendation was released, whichever was later.194 With this decision, the Southern District of New York reaffirmed the “hot news” doctrine as a viable cause of action for organizations that provide time-sensitive information to the public. However, this reaffirmation was short lived. Fly appealed the district court’s ruling to the Court of Appeals for the Second Circuit in April 2009.195 Shortly thereafter, financial firms, various media companies, and others with an interest in the question of whether a “hot news” claim survives filed a myriad of amicus briefs. Large media companies, such as Google and Twitter, along with “friends of the court” such as Harvard Law School’s Citizen Media Law Project and the Electronic Frontier Foundation, argued against the extension of the “hot news” doctrine that the district court allowed.196 The attorneys for Google and Twitter argued that now, because of the widespread use of technology “anyone with a cell phone may disseminate news throughout the world even as it is occurring, [therefore] the notion that a single media outlet should have a monopoly on time-sensitive facts is not only contrary to law, it is, as a practical matter, futile.”197 They also argued that forcing news outlets to hold off on publishing pertinent factual information would cause confusion among news organizations and would be a detriment to the public’s need to know.198
191. Id. at 328. The financial firms were able to provide seventeen examples of verbatim copying between February and March, 2005. Id. Fly initially attempted to assert a fair use defense for this copying, but then admitted that the copying was a copyright violation. Id. The court awarded the financial firms an injunction and statutory damages on this count. Id. at 328-31. 192. Id. at 335. See also Nat’l Basketball Ass’n. v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997). The elements, as articulated in Motorola, are: “(i) a plaintiff generates or gathers information at a cost; (ii) the information is time-sensitive; (iii) a defendant’s use of the information constitutes free riding on the plaintiff’s efforts; (iv) the defendant is in direct competition with a product or service offered by the plaintiffs; and (v) the ability of other parties to free-ride on the efforts of the plaintiff or others would reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.” Motorola, 105 F.3d at 845. 193. Barclays Capital, 700 F.Supp.2d at 343. 194. Id. at 348. The court also awarded the financial firms more than $13,000.00 in statutory damages and allowed them to receive attorneys’ fees. Id. 195. Id. Fly also requested a stay on the injunction or a modification to allow it to repost the financial firms’ recommendations “as soon as they have been published by a mainstream news service.” Id. at 356. The stay and alternative request for modification were denied by the court. Id. On May 7, 2010, the United States Court of Appeals for the Second Circuit granted Fly’s motions for both a stay on the injunction and an expedited appeal. Brief for Defendant-Appellant, Barclays Capital Inc. v. Theflyonthewall.com, 2010 WL 2589040 (June 17, 2010) (No. 10-1372-cv). 196. See generally Brief for Amici Curiae Google Inc. and Twitter, Inc. in Support of Reversal, Barclays Capital Inc. v. Theflyonthewall.com, Inc., 2010 WL 2589770 (June 22, 2010) (No. 10-1372-cv); Brief Amici Curiae of Citizen Media Law Project, Electronic Frontier Foundation, and Public Citizen, Inc., Barclays Capital Inc. v. Theflyonthewall.com, 2010 WL 2589766 (June 22, 2010) (No. 10-1372). 197. Brief for Amici Curiae Google Inc. and Twitter, Inc., supra note 287, at 2. 198. Id.
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