Squirreled away on page 61 of the detailed, 90-page opinion handed down earlier this month in Barclays Capital Inc. v. Theflyonthewall.com[FOOTNOTE 1] is a statement that will make intellectual property lawyers do a double-take: “[E]ven if true, it is not a defense to misappropriation that a Recommendation is already in the public domain by the time Fly reports it.”
If that sentence does not seem surprising, give it another look. Under New York law, in certain limited circumstances, it is possible to “misappropriate” information that is already in the public domain. To understand why, and what the implications are for business models that rely on content aggregation, it is necessary to examine one of the strangest torts in intellectual property law — the misappropriation of “hot news.”
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