Court Ruling Notes That For-Profit, Full Copy Of Audio, Without Commentary Can Also Be Fair Use, In Specific Circumstances

from the nice-to-see dept

Back in 2011, we were worried about the implications of a lawsuit between the Swatch Group and Bloomberg, concerning the recording and distribution of an earnings call by Swatch. In short, Swatch claimed a copyright on its own earnings call. Bloomberg, which obtained a copy of the recording done by someone else, made that recording available to its customers. Not only did this have interesting fair use questions, it also opened up the possibility that bizarre copyright claims could be used as an alternative to wiretapping laws to block perfectly legitimate recordings of phone calls.

Thankfully, the 2nd Circuit appeals court has issued a clear ruling noting that this use is fair use — and that’s true even though Bloomberg (1) used the whole thing (2) did so for commercial reasons and (3) did not add any commentary. This is important, because we regularly hear from copyright maximalist types who assume that if you do any of the above, it automatically loses the ability to be considered fair use. Here, however, the court clearly shows why that’s not true, which should set a useful precedent for other fair use cases (at least within the 2nd circuit), especially when it comes in the context of “reporting.”

The Court makes a few very useful statements in explaining why all of this is fair use. Take, for example, the issue of it being “commercial” in nature. While that may make it a higher bar to prove fair use, it clearly does not preclude fair use:

It is undisputed here that Bloomberg is a commercial enterprise and that Bloomberg Professional is a subscription service available to paying users. At the same time, we have recognized that “[a]lmost all newspapers, books and magazines are published by commercial enterprises that seek a profit,” Consumers Union of U.S., Inc. v. Gen. Signal Corp., 724 F.2d 1044, 1049 (2d Cir. 1983), and have discounted this consideration where “the link between [the defendant]’s commercial gain and its copying is . . . attenuated” such that it would be misleading to characterize the use as “commercial exploitation.” Am. Geophysical Union, 60 F.3d at 922. Here, Swatch does not contest that Bloomberg Professional is a multifaceted research service, of which disseminating sound recordings of earnings calls is but one small part. Moreover, it would strain credulity to suggest that providing access to Swatch Group’s earnings call more than trivially affected the value of that service. So while we will not ignore the commercial nature of Bloomberg’s use, we assign it somewhat reduced weight.

What about the lack of “transformation” as well as the lack of “commentary”? The Court explains why that doesn’t preclude fair use, given the context.

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 rather than transform it. In such cases, courts often find transformation by emphasizing the altered purpose or context of the work, as evidenced by surrounding commentary or criticism. See, e.g., Bill Graham Archives, 448 F.3d at 609–610; Nunez v. Caribbean Int’l News Corp., 235 F.3d 18, 22–23 (1st Cir. 2000). Here, Bloomberg provided no additional commentary or analysis of Swatch Group’s earnings call. But by disseminating not just a written transcript or article but an actual sound recording, Bloomberg was able to convey with precision not only what Swatch Group’s executives said, but also how they said it. This latter type of information may be just as valuable to investors and analysts as the former, since a speaker’s demeanor, tone, and cadence can often elucidate his or her true beliefs far beyond what a stale transcript or summary can show. As courts have long recognized in the context of witness testimony, “’a cold transcript contains only the dead body of the evidence, without its spirit,’” and “cannot reveal . . . ‘[the speaker’s] hesitation, his doubts, his variations of language, his confidence or precipitancy, his calmness or consideration.’”….

There is also an interesting discussion on whether or not the work was “published.” Generally, it’s much harder to win a fair use claim if the work was “unpublished” and Swatch insists this “work” was unpublished. The court agrees that it’s unpublished, but also notes that Swatch invited over 300 analysts to the call and over 100 attended, so the fact that the recording wasn’t “published” carries a lot less weight. In fact, the Court explicitly notes that something unpublished can certainly still be fair use — and in fact, the law is fairly clear that if a work is unpublished, that doesn’t preclude a fair use finding.

On the “amount and substantiality” of the work, the Court notes obviously that the entire work is being used, but again that does not preclude fair use. In fact, the Court notes, as the district court did, that this factor comes out somewhat “neutral” and is clearly outweighed by the wider benefit and good reasons to post the whole thing.

It is undisputed here that Bloomberg used the entire work. The district court acknowledged that “this generally weighs against fair use,” but found that the public interest in the information contained in the recording “is better served by the dissemination of that information in its entirety, including the incidents of oral speech that do not translate onto the page but color the purely factual content.”

[….] 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 recording was reasonable in light of its purpose of disseminating important financial information to American investors and analysts. The recording has independent informational value over and above the value of a written transcript or article, regardless of how many Bloomberg subscribers took advantage of that value in this instance. Like the district court, we accordingly weigh this factor in neither party’s favor.

Swatch also tried to claim that, on the fourth factor — the impact on the commercial market — the fact that it didn’t try to sell the recording shouldn’t matter, since it’s the potential market that matters. The court is not persuaded, noting the risk of such a ruling would be creating a ridiculous rule.

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 Professor Nimmer 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.

All in all, a nice clear win for fair use even when the full work is used for commercial reasons.

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Companies: bloomberg, swatch, swatch group

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Comments on “Court Ruling Notes That For-Profit, Full Copy Of Audio, Without Commentary Can Also Be Fair Use, In Specific Circumstances”

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22 Comments
Mason Wheeler (profile) says:

Re: Wow...

I’m actually a bit confused as how this qualifies as fair use in the first place, for a slightly different reason:

* Fair use is related to copyright
* Copyright explicitly covers creative works only, and not facts
* An earnings report is (theoretically) a presentation of facts and not in any way a creative work. (Making a claim to the contrary about one’s own earnings report would be bad for the health of any company that did so.)
* Therefore, there is no copyright claim to be made in the first place, and no need to invoke fair use to defend against it.

John Fenderson (profile) says:

Re: Re: Wow...

Reasonable arguments can be, and have been, made that the presentation of facts can include copyrightable elements. How you present them can be a creative act.

That said, I’m confused about how copyright applied in the first place because copyright only applies to things that have been put into a tangible form. When I tell you something verbally, what I say is not copyrightable. It sounds like someone recorded a conference call. until that recording, the call was not in a tangible form (and once the recording is made, the copyright to it belongs to the person who made the recording.)

mattshow (profile) says:

Re: Re: Re: Wow...

That said, I’m confused about how copyright applied in the first place because copyright only applies to things that have been put into a tangible form. When I tell you something verbally, what I say is not copyrightable. It sounds like someone recorded a conference call. until that recording, the call was not in a tangible form (and once the recording is made, the copyright to it belongs to the person who made the recording.)

I thought about this as well. I’m assuming Bloomberg’s lawyers are competent enough that they either would have raised this argument, or they dismissed it for good reasons. I haven’t read the judgment yet (just about to), so maybe it will be addressed. Swatch probably had some sort of “script” for the call, so that might be the key to the puzzle.

Mason Wheeler (profile) says:

Re: Re: Re: Wow...

Reasonable arguments can be, and have been, made that the presentation of facts can include copyrightable elements. How you present them can be a creative act.

You know what’s the first thing that comes to mind when you say that? The Da Vinci Code. In the book, the author makes a bunch of historical arguments that were lifted nearly verbatim from an earlier work.

The authors sued for copyright infringement, until the court ruled that as the material in question was supposedly factual, historical research, it was not copyrightable. This left them in the unenviable position of either having no claim, or having to admit that their “research” was a work of fiction.

Mike Masnick (profile) says:

Re: Re: Re: Wow...

That said, I’m confused about how copyright applied in the first place because copyright only applies to things that have been put into a tangible form. When I tell you something verbally, what I say is not copyrightable. It sounds like someone recorded a conference call. until that recording, the call was not in a tangible form (and once the recording is made, the copyright to it belongs to the person who made the recording.)

Bloomberg did attempt to raise the argument that there was no copyright at all, but that sorta got dropped in the process. Lots of procedural crap…

But, as for the copyright, Swatch tried to copyright the entire call, and the Copyright Office (surprisingly) pushed back on that, and only let the company register the recordings of statements made by Swatch execs. Comments made by others were not covered.

Just Sayin' says:

Re: Re:

I don’t think very many people would argue this ruling, because it is factually correct. However, you need to understand that it is in a very narrow context (reporting) and only in a situation where the full recording was really required to explain the story.

It doesn’t suddenly mean you can rip off musical artists and use their full songs for profit. The point that it is for reporting by a known media outlet makes a whole lot of the difference. What Mike doesn’t seem to want to deal with is that the difference between fair use and infringement here was pretty darn narrow, and any single change of circumstance might have given an alternate result. It’s too narrow and too specific of a ruling to have much real work application beyond this single case.

(oh and thanks to Mike for moderating my comments some more… perhaps you want to fix your filters, which are clearly defective and can’t figure out a real poster from spam).

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