Barclays Capital Inc. v. Theflyonthewall. Com’s Empirical Analysis
2010
Citation profile
3 federal appellate · 1 district ·
Relationships
Applies 15 U.S.C. § 78O (§ 15d of the Securities Exchange Act of 1934) · 17 U.S.C. § 107 (§ 101 of the Copyright Act of 1976) · 17 U.S.C. § 504 (§ 101 of the Copyright Act of 1976) · 17 U.S.C. § 505 (§ 101 of the Copyright Act of 1976) · 35 U.S.C. § 284
Relies on Erie Co v. Tompkins · Elrod v. Burns · Basic Inc. v. Levinson · Feist Publications, Inc. v. Rural Telephone Service Co. · Turner Broadcasting System, Inc. v. Federal Communications Commission
Most-quoted passages
The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 5 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.
“The right of the purchaser of a single newspaper to spread knowledge of its contents gratuitously, for any legitimate purpose not unreasonably interfering with complainant’s right to make merchandise of it, may be admitted; but to transmit that news for commercial use, in competition with complainant — which is what defendant has done and seeks to justify — is a very different matter. In doing this, defendant, by its very act, admits that it is taking material that has been acquired by complainant as the result of organization and the expenditure of labor, skill, and money, and which is salable by complainant for money, and that defendant in appropriating it and selling it as its own is endeavoring to reap where it has not sown, and by disposing of it to newspapers that are competitors of complainant’s members is appropriating to itself the harvest of those who have sown. Stripped of all disguises, the process amounts to an unauthorized interference with the normal operation of complainant’s legitimate business precisely at the point where the profit is to be reaped, in order to divert a material portion of the profit from those who have earned it to those who have not; with special advantage to defendant in the competition because of the fact that it is not burdened with any part of the expense of gathering the news. The transaction speaks for itself and a court of equity ought not to hesitate long in characterizing it as unfair competition in business.”
1 later decision quote this exact passage · from the majority“In our view, the elements central to an INS claim are: (i) the plaintiff generates or collects information at some cost or expense, see [Financial Information, Inc. v. Moody’s Investors Serv., 808 F.2d 204 , 206 (2d Cir.1996) (“FII”)]; INS, 248 U.S. at 240 , 39 S.Ct. 68 ; (ii) the value of the information is highly time-sensitive, see FII, 808 F.2d at 209 ; INS, 248 U.S. at 231 , 39 S.Ct. 68 ; Restatement (Third) Unfair Competition, § 38 cmt. c.; (iii) the defendant’s use of the information constitutes free-riding on the plaintiffs costly efforts to generate or collect it, see FII, 808 F.2d at 207 ; INS, 248 U.S. at 239-40 , 39 S.Ct. 68 ; Restatement § 38 at cmt. c.; McCarthy, § 10:73 at 10-139; (iv) the defendant’s use of the information is in direct competition with a product or service offered by the plaintiff, FII, 808 F.2d at 209 , INS, 248 U.S. at 240 , 39 S.Ct. 68 ; (v) the ability of other parties to free-ride on the efforts of the plaintiff would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened, FII, 808 F.2d at 209 ; Restatement, § 38 at cmt. c.; INS, 248 U.S. at 241 , 39 S.Ct. 68 (“[INS’s conduct] would render [AP’s] publication profitless, or so little profitable as in effect to cut off the service by rendering the cost prohibitive in comparison with the return.”).”
1 later decision quote this exact passage · from the dissent“‘Misappropriation’ is not necessarily synonymous with copyright infringement, and thus a cause of action labeled as ‘misappropriation’ is not preempted if it is in fact based neither on a right within the general scope of copyright as specified in section 106 nor on a right equivalent thereto. For example, state law should have the flexibility to afford a remedy (under tradition principles of equity) against a consistent pattern of unauthorized appropriation by a competitor of facts .... constituting ‘hot’ news, whether in the traditional mold of [INS] or in the newer form of data updates from scientific, business, or financial data bases.”
1 later decision quote this exact passage · from the dissent
How this case has been treated — in progress
Whether each later court followed, distinguished, criticized, or overruled this decision. The treatment classification (task #35) runs highest-cited cases first and lights up here as it reaches this one.