Barclays Capital Inc. v. Theflyonthewall.com
United States Court of Appeals for the Second Circuit
650 F.3d 876 (2011)
Barclays and other banks (plaintiffs) invested substantial analyst effort producing buy/sell/hold stock recommendations, giving paying subscribers an early look before releasing the recommendations to the public after the market opened; the banks profited through brokerage commissions on trades the recommendations generated. Theflyonthewall.com (Fly) (defendant), a news aggregator, obtained and republished the banks' recommendations to its own subscribers before the market opened, always attributing each recommendation to the originating bank. The banks sued for hot-news misappropriation and won an injunction requiring Fly to delay republication until 30 minutes after the market opened; Fly appealed, arguing the Copyright Act preempted the claim.
Whether a party can maintain a hot-news misappropriation claim against a defendant that is not free-riding on the party's work but is instead disseminating factual information, and whether such a claim is preempted by the federal Copyright Act.