Swatch Group v. BloombergSwatch Group v. Bloomberg
For the reasons stated below, the defendant‘s cross-appeal is DISMISSED, and the judgment of the district court is AFFIRMED.
KATZMANN, Chief Judge:
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
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
In addition, Bloomberg cross-appeals from the same judgment of the district court, urging us to hold that Swatch‘s sound recording is not protected by the copyright laws in the first place. Swatch has moved to dismiss the cross-appeal on the grounds that Bloomberg lacks appellate standing and we lack appellate jurisdiction. That motion is granted. Because the judgment designated in Bloomberg‘s notice of appeal was entered in Bloomberg‘s favor, Bloomberg is not “aggrieved by the judicial action from which it appeals,” Great Am. Audio Corp. v. Metacom, Inc., 938 F.2d 16, 19 (2d Cir. 1991), and therefore lacks standing. Similarly, although the district court later dismissed as moot Bloomberg‘s counterclaim for a declaration that Swatch‘s copyright is invalid, Bloomberg never filed an additional notice of appeal identifying that subsequent order as the subject of an appeal, and thus we have no jurisdiction to review it.
Accordingly, we affirm the judgment of the district court, and we dismiss the cross-appeal.
BACKGROUND
I. Factual Background
The following facts are drawn from the record before the district court and are undisputed unless otherwise noted.
On February 8, 2011, Swatch Group released its 2010 earnings report, a seven-page compilation of financial figures and textual narrative about the company‘s financial performance during the prior year. Because Swatch Group is incorporated in Switzerland and its shares are publicly traded on the Swiss stock exchange, Swatch Group is governed by Swiss securities law and the listing rules of the Swiss exchange. In accordance with those rules, Swatch Group filed its
After it released this information to the public, Swatch Group held a conference call with an invited group of financial analysts, as is its custom. Swiss law permits public companies to hold this kind of earnings call with a limited group of analysts, provided that the company does not disclose non-public, significantly price-sensitive facts during the call. Before the call, Swatch Group sent invitations to all 333 financial analysts who had registered in advance with Swatch Group‘s Investor Relations Department. In accordance with its practice, Swatch Group did not invite members of the press. Swatch Group held the call at 2 p.m. local Swiss time, several hours after it had released the earnings report, in order to allow European, American, and Asian analysts to participate. In the end, approximately 132 analysts joined the call. For Swatch Group‘s part, its Chief Executive Officer, Chief Financial Officer, and three other senior executives participated in the call from the company‘s offices in Switzerland.
At Swatch Group‘s request, an audio conferencing vendor recorded the entire earnings call as it was in progress. At the beginning of the call, an operator affiliated with the vendor welcomed the analysts to the call and told them, “This call must not be recorded for publication or broadcast.” J.A. 22. Swatch Group‘s executives then provided commentary about the company‘s financial performance and answered questions posed by fifteen of the analysts. The entire call lasted 132 minutes; Swatch Group executives spoke for approximately 106 of those minutes.
Neither Bloomberg nor any other press organization was invited to the earnings call. Nevertheless, within several minutes after the call ended, Bloomberg obtained a sound recording and written transcript of the call and made them both available online, without alteration or editorial commentary, to subscribers to its online financial research service known as Bloomberg Professional. According to Bloomberg‘s promotional materials, Bloomberg Professional provides “[a] massive data stream” with “rich content” that is “unparalleled in scope and depth” and is “delivered to your desktop in real time,” as well as “access to all the news, analytics, communications, charts,
On February 10, 2011, after Swatch Group learned that the recording and transcript had been made available on Bloomberg terminals, Swatch Group sent Bloomberg a cease-and-desist letter demanding that they be removed. Bloomberg refused. On February 14, 2011, Swatch then filed its initial complaint against Bloomberg in this action claiming infringement of its copyright in the sound recording of the earnings call. In an agreement signed by representatives of Swatch Group and Swatch on February 14 and 15, 2011, Swatch Group assigned its interest in the copyright to its subsidiary Swatch.
Two weeks later, on March 2, 2011, Swatch filed an application with the U.S. Copyright Office to register a copyright in a sound recording of the earnings call. The Copyright Office and Swatch then exchanged a series of emails over the scope of the claimed copyright. After Swatch narrowed the copyright to cover only the statements made by Swatch Group executives, and not the statements made by the operator or the questions posed by the analysts, the Copyright Office issued a registration on April 27, 2011.
II. Procedural History
As stated, Swatch filed its initial complaint in this action on February 14, 2011. Swatch then twice amended its complaint; the operative pleading thus is the Second Amended Complaint, filed on May 10, 2011. The Second Amended Complaint alleges that, by recording the earnings call and making the recording available to the public, Bloomberg infringed Swatch‘s exclusive rights “to reproduce the copyrighted work” and “to distribute copies or phonorecords of the work to the public.”
On May 20, 2011, Bloomberg moved under
At an in-court conference held two weeks later on September 16, 2011, however, the district court informed the parties of its belief that it could resolve the case through a motion for judgment on the pleadings, and directed Swatch to file such a motion. Swatch moved as directed on October 21, 2011, and Bloomberg opposed. The district court held oral argument on December 12, 2011, at which it denied Swatch‘s motion and explained that, in the court‘s view, “defendant‘s use qualifies as fair use.” J.A. 581. Later that day, the district court issued a summary order stating that it had “preliminarily granted judgment to Defendant on the basis that if Defendant‘s alleged actions constitute infringement, they are protected as fair use.” Id. 584. The order directed Swatch to submit “a brief regarding the existence of any triable issues of material fact with respect to Defendant‘s fair use affirmative defense.” Id. Swatch did so, pointing out that it had taken no discovery in the action.
In an opinion and order entered on May 17, 2012, the district court sua sponte granted summary judgment to Bloomberg, finding that Bloomberg‘s copying and dissemination of the recording qualify as fair use. Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P. (”Swatch II“), 861 F. Supp. 2d 336 (S.D.N.Y. 2012). On May 18, 2012, the clerk of the district court entered judgment “in favor of defendant.” J.A. 7.
On June 14, 2012, Swatch filed a timely notice of appeal from that judgment. On June 28, 2012, Bloomberg filed a notice of cross-appeal from the same judgment, and on July 24, 2012, Swatch moved to dismiss the cross-appeal. On August 27, 2012, after the parties had filed a stipulation of dismissal without prejudice to reinstatement under Local Rule 42.1, the district court issued an order dismissing as moot all of Bloomberg‘s counterclaims, including a counterclaim seeking a declaration that Swatch‘s copyright is invalid. On November 13, 2012, upon receipt of a letter from Swatch, the Clerk reinstated the appeal. Finally, on January 14, 2013, the motions panel of this Court referred Swatch‘s motion to dismiss the cross-appeal to the merits panel.
DISCUSSION
We review a district court‘s grant of summary judgment de novo, resolving all ambiguities and drawing all reasonable inferences against the moving party. See Garanti Finansal Kiralama A.S. v. Aqua Marine & Trading Inc., 697 F.3d 59, 63–64 (2d Cir. 2012). Summary judgment is appropriate only where the record shows “that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.”
I. Fair Use
The Copyright Act of 1976 grants copyright holders a bundle of exclusive rights, including the rights to “reproduce, perform publicly, display publicly, prepare derivative works of, and distribute copies of” the copyrighted work. Arista Records LLC v. Doe 3, 604 F.3d 110, 117 (2d Cir. 2010) (citing
To evaluate whether a particular use qualifies as “fair use,” we must engage in “an open-ended and context-sensitive inquiry.” Blanch v. Koons, 467 F.3d 244, 251 (2d Cir. 2006). The Copyright Act directs that, in determining whether a particular use is fair, “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 determination of fair use is a mixed question of fact and law. See Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985). While we have reversed district courts that too hastily resolved factual questions relevant to fair use on summary judgment, see, e.g., Ringgold v. Black Entm‘nt Television, Inc., 126 F.3d 70, 81 (2d Cir. 1997), “this [C]ourt has on a number of occasions resolved fair use determinations at the summary judgment stage where there are no genuine issues of material fact.” Blanch, 467 F.3d at 250 (quoting Castle Rock Entm‘t, Inc. v. Carol Publ‘g Grp., 150 F.3d 132, 137 (2d Cir. 1998)) (ellipsis omitted).
A. Purpose and Character of Use
We turn first to “the purpose and character of the use.”
Swatch argues that this conclusion was error for several reasons. First, Swatch contends that the district court improperly accepted Bloomberg‘s unsubstantiated claim that it had engaged in “news reporting.” Swatch notes that Bloomberg itself has characterized its Bloomberg Professional service as delivering both financial “news” and “data,” and argues that the district court erred in denying Swatch the chance to develop facts in discovery to show that the sound recording at issue here is the latter and not the former. Similarly, Swatch argues that the district court improperly denied Swatch the chance to develop facts relevant to Bloomberg‘s state of mind. Swatch acknowledges that the district court “credited [Swatch]‘s allegations that [Bloomberg] was not authorized to access the Earnings Call and that [Bloomberg]‘s publication of the Infringing Work violated [Swatch Group‘s] directive,” Swatch II, 861 F. Supp. 2d at 343, but argues that Swatch should have been able to take discovery into whether Bloomberg knew at the time that obtaining and publishing the recording violated Swatch Group‘s directive. Swatch also argues that it should have been
We find these arguments unpersuasive and hold 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 investors and analysts. That kind of information is of critical importance to securities markets. Indeed, as Bloomberg points out, the Securities and Exchange Commission (“SEC“) has mandated that when American companies disclose this kind of material nonpublic information, they must make it available to the public immediately. See Regulation FD,
Seizing on Bloomberg‘s citation to Regulation FD, Swatch protests that in crafting that regulation, the SEC expressly exempted “foreign private issuer[s]” like Swatch Group that are “incorporated or organized under the laws of [a] foreign country.”
This argument, however, misattributes to Regulation FD a role in the law of copyright. That regulation is relevant here only insofar as it provides additional support for a proposition that would be clear in any event: Investors and analysts have an interest in obtaining important financial information about companies whose securities are traded in American and other markets. The fact that the SEC has chosen not to require foreign issuers to follow certain disclosure rules imposed on domestic issuers in no way implies that information about foreign issuers is irrelevant. Accordingly, contrary to Swatch‘s suggestion, nothing in our decision today subjects Swatch Group or any other foreign issuer to the requirements of Regulation FD. Nor do we hold that a foreign issuer‘s failure to follow Regulation FD prevents it from enforcing its copyrights in the United States. We merely hold that where a financial research service obtains and disseminates important financial information about a foreign company in order to make that information available to investors and analysts, that purpose lends support to a finding of fair use.
Swatch also stresses the commercial nature of Bloomberg‘s use. Section 107 expressly directs courts to consider whether the use “is of a commercial nature or
Swatch also contends that Bloomberg acted in bad faith and that this should count against it. Regardless of what role good or bad faith plays in fair use analysis, see Blanch, 467 F.3d at 255–56, we need not tarry over it here. Even assuming that Bloomberg was fully aware that its use was contrary to Swatch Group‘s instructions, Bloomberg‘s overriding purpose here was not to “scoop[]” Swatch or “supplant the copyright holder‘s commercially valuable right of first publication,” Harper & Row, 471 U.S. at 562, but rather simply to deliver newsworthy financial information to investors and analysts. That kind of activity, whose protection lies at the core of the First Amendment, would be crippled if the news media and similar organizations were limited to sources of
The Supreme Court has also instructed courts analyzing the first fair use factor to consider the transformativeness of the use—that is, whether “the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Campbell, 510 U.S. at 579 (internal citations, quotation marks, and alterations omitted). While a transformative use generally is more likely to qualify as fair use, “transformative use is not absolutely necessary for a finding of fair use.” Id.; see also Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984) (finding a non-transformative use to be a fair use).
In the context of news reporting and analogous activities, moreover, the need to convey information to the public accurately may in some instances make it desirable and consonant with copyright law for a defendant to faithfully reproduce an original work without alteration. Courts often find such uses transformative by emphasizing the altered purpose or context of the work, as
Furthermore, a secondary work “can be transformative in function or purpose without altering or actually adding to the original work.” A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 639 (4th Cir. 2009) (holding that making an exact digital copy of a student‘s thesis for the purpose of determining whether it included plagiarism is a fair use); see also Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir. 2007) (holding that a search engine‘s publication of low-resolution, thumbnail copies of copyrighted images was “highly transformative” because the thumbnails were “incorporate[ed] . . . into a new work, namely, an electronic reference tool“). Here, notwithstanding that the data disseminated by Bloomberg was identical to what Swatch Group had disseminated, the two works had different messages and purposes. To begin with, while Swatch Group purported to convey true answers to the analysts’ questions and to justify the propriety and reliability of its published earnings statement, Bloomberg made no representation one way or another as to whether the answers given by Swatch Group executives were true or reliable. Nor did
Moreover, Swatch Group intended to exclude members of the press and to restrict the information supplied by its executives to a relatively small group of analysts who had identified themselves to the company in advance. Bloomberg‘s objective in rebroadcasting the call, by contrast, was to make this information public, defeating Swatch Group‘s effort to restrict access. Bloomberg‘s purpose, in other words, was to publish this factual information to an audience from which Swatch Group‘s purpose was to withhold it. These differences give Bloomberg‘s use at least an arguably transformative character.
In any event, regardless of how transformative the use is, we conclude that the first fair use factor, focusing on the purpose and character of the secondary use, favors fair use. We of course recognize that a news reporting purpose by no means guarantees a finding of fair use. See Harper & Row, 471 U.S. at 557. After
First, as noted above, by disseminating a full, unadulterated recording of the earnings call, Bloomberg was able to convey valuable factual information that would have been impaired if Bloomberg had undertaken to alter the speech of the Swatch Group executives by interjecting its own interpretations. As we explained in a fair use case involving verbatim copying of a written work, “[w]here an evaluation or description is being made, copying the exact words may be the only valid way precisely to report the evaluation.” Consumers Union, 724 F.2d at 1049–50; see also Harper & Row, 471 U.S. at 563 (noting that direct copying may in some instances be “necessary adequately to convey the facts“). So too here, copying the exact spoken performance of Swatch Group‘s executives
Second, Bloomberg‘s use did no harm to the legitimate copyright interests of the original author. Importantly, Swatch has admitted that it “did not seek to profit from the publication of the February 8, 2011 Earnings Call in audio or written format.” J.A. 294. The copyright-protected aspects of the earnings call—that is, the manner by which the facts were expressed—thus were of no value to Swatch or Swatch Group except insofar as they served to convey important information to the analysts in attendance. But Bloomberg‘s copying of the Swatch Group executives’ words, as needed to communicate factual information about the company‘s earnings report, in no way diminished Swatch Group‘s ability to communicate with analysts, and thus caused no harm to Swatch‘s copyright interests. In this way, the case at bar stands in stark contrast to a case like Harper & Row, where a magazine disseminated an unpublished excerpt of President Ford‘s memoirs. See Harper & Row, 471 U.S. at 542. This kind of gun-jumping, which scooped the publication of the copyrighted work and, in doing so, did
Our prior decisions in Nihon Keizai Shimbun, Inc. v. Comline Business Data, Inc., 166 F.3d 65 (2d Cir. 1999), Wainwright Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir. 1977), and Financial Information, Inc. v. Moody‘s Investors Service, Inc. (”FII“), 751 F.2d 501 (2d Cir. 1984), on which Swatch relies, are not to the contrary. In those cases, we rejected fair use arguments pressed by defendants who purported to be serving the public by providing access to important financial information. In Nihon and Wainwright, we stressed that the defendants had not supplemented or otherwise transformed the plaintiffs’ works. Instead, they had simply translated Japanese business articles into English, Nihon, 166 F.3d at 69, or recounted the critical conclusions from research reports about major industrial and financial corporations, Wainwright, 558 F.2d at 93 & n.1. In FII, we rejected a fair use defense by a ratings agency that had copied information about municipal bond redemptions compiled by a competing financial publisher. FII, 751 F.2d at 502–03. Criticizing the district court‘s conclusion that the defendant‘s use served a “public function,” we stated that to
In all three of those cases, however, the defendants attempted to use the banner of newsworthiness to supersede the core objects of original works whose production critically depended upon copyright protection. Finding fair use in those cases would have severely impeded the ability of news and research organizations to obtain payment for their expression, imperiling the economic foundation of vital industries. But unlike the arguments we rejected in Nihon, Wainwright, and FII, our decision today does not rest upon the newsworthiness of the original expression alone. To the contrary, we also place great weight on the absence of harm to the original author‘s legitimate copyright interests. Swatch‘s reliance on our prior cases is thus misplaced.
The discovery Swatch seeks would not alter our analysis. With respect to the request for discovery into whether Bloomberg delivered “news” or “data” to its subscribers, such a distinction raises a semantic rather than factual dispute. It
This first factor accordingly favors fair use.
B. Nature of the Copyrighted Work
The second statutory fair use factor concerns “the nature of the copyrighted work.”
Swatch argues that the district court erred in concluding that the recording had been published. Swatch points out that the Copyright Act contemplates two methods of publishing an audio recording: “the distribution of . . . phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending,” or “offering to distribute . . . phonorecords to a group of persons for purposes of further distribution, public performance, or public display.”
Swatch is unquestionably correct that the earnings call is unpublished under the definition of “publication” set forth in
To the extent the text of
Limiting our consideration of a work‘s publication status to the statutory definition, moreover, would obscure the different purposes served by the statutory definition and the judicial gloss on “the nature of the copyrighted work” in the context of fair use. The statutory concept of “publication” serves numerous purposes, such as triggering the requirement to deposit a copy with the Library of Congress, see
This is not the first time that we have found that the second statutory factor favors fair use even though the work in question was technically unpublished under the statutory definition, see Diamond v. Am-Law Pub. Corp., 745 F.2d 142, 144, 148 (2d Cir. 1984), and courts in fact commonly look past the statutory definition when considering this issue, see, e.g., Rotbart v. J.R. O‘Dwyer Co., Inc., No. 94 Civ. 2091 (JSM), 1995 WL 46625, at *4 (S.D.N.Y. Feb. 7, 1995) (finding that an unfixed, undisseminated talk, delivered publicly, had been “de facto published” for purposes of fair use); see also 4 Nimmer on Copyright § 13.05[A][2][b][ii] (“If the author does not seek confidentiality, fair use is not necessarily precluded even as to an unpublished work.“).3 We accordingly agree
Swatch does not challenge the district court‘s determination that Swatch‘s copyright in the earnings call is “at best . . . ‘thin,‘” Swatch II, 861 F. Supp. 2d at 341, nor could it. It is well established that “the scope of fair use is greater with respect to factual than non-factual works.” New Era Publ‘ns, 904 F.2d at 157. Moreover,
[e]ven within the field of fact works, there are gradations as to the relative proportion of fact and fancy. One may move from sparsely embellished maps and directories to elegantly written biography. The extent to which one must permit expressive language to be copied, in order to assure dissemination of the underlying facts, will thus vary from case to case.
Harper & Row, 471 U.S. at 563 (quoting Robert A. Gorman, Fact or Fancy? The Implications for Copyright, 29 J. Copyright Soc‘y 560, 561 (1982)).
There can be no doubt as to the manifestly factual character of the earnings call in this case. The entire copyrighted portion of the call consists of Swatch
In light of the thinness of Swatch‘s copyright, as well as Swatch Group‘s prior dissemination of its executives’ expression, we find that the second statutory factor favors fair use.
We turn now to “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.”
Swatch argues that the district court improperly resolved this factor in Bloomberg‘s favor because, as it also argued with respect to the first fair use factor, there are genuine disputes of material fact regarding whether Bloomberg
We are unpersuaded. As an initial matter, we do not understand the district court to have affirmatively weighed the third statutory fair use factor in Bloomberg‘s favor. Such a holding would have been novel, as “[n]either our court nor any of our sister circuits has ever ruled that the copying of an entire work favors fair use.” Bill Graham Archives, 448 F.3d at 613. Rather, we believe that the district court found this factor neutral, refusing to weigh it in Swatch‘s favor despite Bloomberg‘s use of the entire recording because of the public interest in the information embodied in the recording. That holding is entirely consistent with our case law. As we have recognized, a number of courts “have concluded that such copying does not necessarily weigh against fair use because copying the entirety of a work is sometimes necessary to make a fair use.” Id. (citing cases); see also A.V. ex rel. Vanderhye, 562 F.3d at 642, 645 (finding copying of an entire work to be fair use); Perfect 10, 508 F.3d at 1167–68 (same).
For the reasons already explained in our discussion of the first fair use factor, we agree with the district court that Bloomberg‘s use of the entire
D. Effect upon the Market for or Value of the Original
The final fair use factor considers “the effect of the use upon the potential market for or value of the copyrighted work.”
The district court weighed this factor in favor of fair use, noting that “the relevant market effect is that which stems from [Bloomberg]‘s use of the original expression of Swatch Group‘s senior officers.” Swatch II, 861 F. Supp. 2d at 342. The district court found “[n]othing in the record [that] suggests any possible market effect stemming from [Bloomberg]‘s use.” Id. We agree, especially in view of the obvious and furthermore conceded fact that Swatch had no interest in the exploitation of the copyright-protected aspects of the call.
Swatch argues that the district court‘s analysis was erroneous because it again assumed that affording investors and analysts access to the recording, as opposed to a written transcript or article, served the public interest. As we have already explained, we see nothing mistaken in that finding.
Swatch also contends that it was improperly denied the opportunity to take discovery into the existence of a market for audio recordings of earnings calls conducted by foreign companies that, like Swatch Group, are exempt from
While the loss of a potential yet untapped market can be cognizable under the fourth fair use factor, the potential market here is defined so narrowly that it begins to partake of circular reasoning. As the Nimmer treatise has observed, “it is a given in every fair use case that plaintiff suffers a loss of a potential market if that potential is defined as the theoretical market for licensing the very use at bar.” 4 Nimmer on Copyright § 13.05[A][4]. To guard against this “vice of circular reasoning,” our case law limits our consideration to a use‘s “impact on potential licensing revenues for traditional, reasonable, or likely to be developed markets.” Am. Geophysical Union, 60 F.3d at 930–31. The hypothesized market for audio recordings of earnings calls convened by foreign companies that are exempt from Regulation FD cannot meet this standard.
Moreover, to the extent that a financial news or research organization might be willing to pay to obtain such recordings, we must bear in mind that
We accordingly agree with the district court that the fourth statutory factor weighs in favor of fair use.
E. Balance of Factors
Balancing the four statutory factors together, we conclude that “the copyright law‘s goal of promoting the Progress of Science and useful Arts would
Having resolved Swatch‘s main appeal on the ground of fair use without reaching the issue of copyrightability, we must address Swatch‘s motion to dismiss Bloomberg‘s cross-appeal. That motion is granted, for two reasons.
First, it is axiomatic that “[i]n order to have standing to appeal, a party must be aggrieved by the judicial action from which it appeals.” Great Am. Audio Corp., 938 F.2d at 19. Here, the May 18, 2012 judgment identified in Bloomberg‘s notice of appeal as the subject of the cross-appeal provides simply: “[f]or the reasons stated in the Court‘s Opinion and Order dated May 17, 2012, judgment is hereby entered in favor of [Bloomberg].” Special App. 13. The May 17, 2012 Opinion and Order, in turn, had explained that “since [Bloomberg]‘s use qualifies as fair use, [Bloomberg] has not infringed, and [Swatch]‘s Second Amended Complaint should be dismissed.” Swatch II, 861 F. Supp. 2d at 343.
Bloomberg argues that it is aggrieved by the May 18, 2012 judgment because it seeks a decision not only as to whether its use was fair use, but also as to whether Swatch‘s recording was validly copyrightable in the first place. To the extent Bloomberg contends that Swatch‘s complaint should be dismissed on the
Second, to the extent that Bloomberg challenges the district court‘s dismissal of its counterclaim seeking a declaration that Swatch‘s copyright is invalid, that ruling of the district court is not properly before us. Federal Rule of Appellate Procedure 3(c)(1)(B) provides that a notice of appeal “must . . . designate the judgment, order, or part thereof being appealed.” This requirement is “jurisdictional in nature.” Gonzales v. Thaler, 132 S. Ct. 641, 652 (2012) (quoting Smith v. Barry, 502 U.S. 244, 248 (1992)). Bloomberg‘s notice of cross-appeal, filed on June 28, 2012, designates only the district court‘s May 18, 2012 judgment, which did not resolve Bloomberg‘s counterclaim. As the May 17, 2012 Opinion
Bloomberg‘s cross-appeal accordingly is dismissed for lack of standing and lack of jurisdiction.
For the foregoing reasons, Bloomberg‘s cross-appeal is DISMISSED, and the district court‘s judgment is AFFIRMED.
Notes
Appellant‘s Br. 9 (quoting J.A. 153 at 37:25–38:43).So we‘re not looking desperately for someone else, but I can tell you that there are many companies out there who would like to benefit from the products, the[] know how, the management capabilities of Swatch Group.
And you should ask the other companies out there, even big players, if they would not think that—being part of The Swatch Group, they will do much better. Look at the results and margins and what they are doing, look at the regional trends, I think you would find many of them.