A Legal Blog by Aaron | Sanders, PLLC

Is it Fair Use? Information Wants to Be Free, but Copyright Is at the Turnpike

We Took the Whole Thing, But it Was for Journalism!

I blogged about Swatch’s dispute with Bloomberg a couple of years ago. At the time, Bloomberg’s motion to dismiss had just been denied, but the trial court explicitly did not address fair use, mostly because it couldn’t at that early stage.

One of the lucky 333 analysts invited to the Swatch earnings call. Photo taken by Eric Danley under this Creative Commons license.

The Secret Pleasures of Earnings Calls

Swatch is a Swiss watch-maker. You may have heard of its products. More important (for our purposes), it’s a major, publicly-traded international corporation. And like most such companies, it routinely holds an “earnings call” (or “analyst call”) right after it files (with the SEC) and release (to the public) its earnings report. The earnings report is required of public companies so investors know certain basic information about the company. The earnings call is optional, but it gives the company a chance to explain the earnings report, while potentially opening itself up to awkward questions from some pretty sharp and skeptical folks.

As you might expect, Swatch doesn’t like the awkward questions, so it tries to limit the audience of the conference call to…


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I Need a Copyright License for My Personal Virtual Island?

Yes, if You Hired Someone to Design it for You.

Remember when Second Life was all the rage? I’ll admit that my memory is a little hazy, but I swear it was a huge deal a few years ago. Anyway, it’s still around, with a new slogan: YOUR IMAGINATION, YOUR WORLD.* If you’re not familiar, Second Life is an interactive virtual world that emphasizes the creation of virtual lands, complete with topography, buildings, etc. Subscribers operate avatars that may move through and interact with these worlds.

* Judging from this promotional video: ALSO BOOBS. Seriously.

Subscribers can also purchase virtual land and “terraform” it—i.e., give it mountains, forests, buildings, beaches, caves—to their liking. These lands can be private—i.e., cut off except for those specifically invited—in which case they’re called “islands.”

In this post, I’ll be discussing a recent decision in a lawsuit about whether terraformed virtual “islands” are copyrightable. More practically, the lawsuit is an object-lesson how badly things can go when copyright is involved in what appears to be “just a business transaction.”

Prelude to an Accidental Copyright Dispute

A teacher (we’ll call her the Teacher) working for a particular school district (we’ll call it the District) got the idea that these…

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Swatch it Bloomberg!

Sound Recording Copyrights Aren’t Just for Songs

Here’s another example of how the application of copyright law to some common, situations can be counter-intuitive and even a little strange.

Swatch, the swiss watch-maker, was having a regular conference call with investors and securities analysts about its business, earnings, outlook, and things like that.  This is a fairly common occurrence among publicly-traded companies.  As was typical with such calls, it started with Swatch’s CEO giving some brief remarks; then Swatch executives took questions from the investors and analysts.  Unless you are an investor, a security analyst or a financial reporter, these things are as dull as can be.

Bloomberg, the financial journal and overall font of financial information, wasn’t invited to be on the call, but it wasn’t difficult to dial into it.  It was Bloomberg’s regular practice—-to listen in on such calls, record them, transcript the recording, and publish both the recording and the transcript.  I suspect this is the regular practice of a lot of other financial journals.

As it happens, Swatch arranged to have the call recorded as well.  From a copyright standpoint, this might not have worried Bloomberg very much.  You can only obtain copyright in works that are “fixed”…

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