Swatch Group Management Services, Ltd. v. Bloomberg L.P.
742 F.3d 17
2d Cir.2014Background
- Swatch Group Management Services Ltd. sued Bloomberg L.P. for copyright infringement of a sound recording of Swatch’s earnings call, alleging unauthorized copying and public dissemination to Bloomberg subscribers.
- The earnings call occurred after Swatch released its 2010 earnings report on February 8, 2011; Swatch invited ~333 analysts, about 132 attended, and Swatch allowed an audio vendor to record the call.
- Bloomberg obtained the full recording and accompanying transcript within minutes after the call and posted them to Bloomberg Professional subscribers without authorization.
- The district court sua sponte granted summary judgment in Bloomberg’s favor on the fair use defense and Swatch appealed; Bloomberg cross-appealed, challenging Swatch’s copyrightability and the district court’s ruling.
- The circuit affirmed the district court’s fair-use ruling, dismissed Bloomberg’s cross-appeal for lack of standing/jurisdiction, and remanded with judgment for Bloomberg’s favor on the stated issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bloomberg’s use was fair use under §107. | Swatch argues Bloomberg’s use is not transformative and violates copyright; discovery needed on Bloomberg’s purpose, state of mind, and subscriber behavior. | Bloomberg contends its dissemination serves news reporting/public-interest function and is transformative enough under fair use. | Yes, fair use. |
| Whether Swatch’s copyright in the earnings call is valid and whether publication status affects fair use. | Swatch contends the recording is unpublished or not sufficiently published to affect fair use; cross-appeal on copyright validity. | Bloomberg argues Swatch’s copyright validity is agnostic to fair use; publication status should not foreclose fair-use analysis. | Cross-appeal dismissed; no jurisdiction or standing to challenge copyrightability; fair use analysis proceeds. |
| Whether Bloomberg has appellate standing to cross-appeal from the district court’s judgment. | Swatch maintains Bloomberg lacks aggrievement and standing to appeal any cross-issue. | Bloomberg asserts it is aggrieved and may appeal the reasons underlying the district court’s decision. | Bloomberg’s cross-appeal dismissed for lack of standing and lack of jurisdiction. |
Key Cases Cited
- Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006) (balance of fair-use factors; non-transformative use can be fair use in news context)
- Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539 (U.S. 1985) (news reporting and transformation considerations; purpose of use)
- NXIVM Corp. v. Ross Inst., 364 F.3d 471 (2d Cir. 2004) (weight of commercial use in fair-use analysis; not all commercial uses defeat fair use)
- Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (U.S. 1984) (copying of an entire work can be fair use in some contexts)
- Barclays Capital Inc. v. Theflyonthewall.com, Inc., 650 F.3d 876 (2d Cir. 2011) (balancing public benefit against private royalties; fair-use considerations in financial news context)
- Great American Audio Corp. v. Metacom, Inc., 938 F.2d 16 (2d Cir. 1991) (standing/jurisdiction principles for appeals)