This month, we discuss Swatch Group Management Services Ltd. v. Bloomberg L.P.,1 in which the U.S. Court of Appeals for the Second Circuit examined the scope of copyright protection accorded a sound recording of a public company’s conference call with investment analysts. More specifically, the court considered whether Bloomberg L.P. (Bloomberg), a financial news and data reporting service that obtained an unauthorized copy of that sound recording and disseminated it to its paying subscribers, could avoid liability for copyright infringement based on the affirmative defense of “fair use.”2 In an opinion by Chief Judge Robert A. Katzmann, joined by Judge Amalya L. Kearse and Judge Richard C. Wesley, the court held that Bloomberg’s distribution qualified as fair use, notwithstanding its commercial nature, because it served the important public purpose of ensuring widespread dissemination of financial information.
Background
On Feb. 8, 2011, The Swatch Group Ltd. released its 2010 earnings report containing relevant financial information and a narrative overview of the company’s financial performance during 2010. Swatch Group, a Swiss corporation whose shares are publicly traded on the Swiss Stock Exchange, filed its earnings report with the Exchange pursuant to Swiss securities laws and subsequently posted the report in multiple languages on its website.
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