Amicus_20Brief_20from_20AHN

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					                  Case No. 10-1372 CV

                             In The
      United States Court of Appeals for the Second Circuit
                      ______________
BARCLAYS CAPITAL, INC., MERRILL LYNCH, PIERCE, FENNER &
   SMITH INCORPORATED, AND MORGAN STANLEY & CO.,
                       INCORPORATED,

                        Plaintiff-Appellees,

                                 v.

               THEFLYONTHEWALL.COM, INC.

                       Defendant-Appellant

                      ______________

 BRIEF AMICUS CURIAE OF AHN MEDIA CORP. IN SUPPORT OF
                DEFENDANT-APPELLANT

                      ______________

                        Thomas P. Ramstack
                     800 4th Street SW, No. N517
                       Washington, DC 20024
                       Phone: (202) 479-7240
          Counsel For Amicus Curiae of AHN Media Corp.
          On Appeal from the United States District Court
        for the Southern District of New York (Foley Square)
                                       i

TABLE OF CONTENTS

TABLE OF AUTHORITIES …………………………………… ii
STATEMENT OF INTEREST…………………………………. 1
SUMMARY OF ARGUMENT…………………………………. 3
ARGUMENT…………………………………………………….. 4
  A. The Court of Appeals in Barclays v. TheFlyOnTheWall.com should vacate
     or modify the Permanent Injunction dated March 18, 2010 to avoid conflicts
     with First Amendment free speech protections for publishing information in
     the public domain.
  B. The District Court’s injunction overlooks the social benefit of news
     aggregators.

   CONCLUSION……………………………………………… 9
                                       ii

TABLE OF AUTHORITIES

CASES

Barclays Capital Inc. v. TheFlyOnTheWall.com, 06 Civ. 4908 (S.D.N.Y. Mar.
18, 2010)……………………………………………………………....… 4

International News Service v. Associated Press, 248 U.S. 215 (1918)….. 5

Feist Publ’ns, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345
(1991) ………………………………………………………………….…5

NBA v. Motorola, 105 F.3d 841, 843, 847 (2d Cir. 1997) …………….… 5

Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1369 (5th Cir. 1981)
…………………………………………………………………………… 6

Bartnicki v. Vopper, 532 U.S. 514, 527-28, 533-35 (2001)……………… 7

Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 103-06
(1979)……………………………………………………………..……… 7

Time Inc. v. Bernard Geis Assocs., 293 F. Supp. 130 (S.D.N.Y.
1968)………..………………………………………………….……….… 8

OTHER AUTHORITIES

Bayard, Sam, Public Media Law Project, “Barclays v. TheFlyOnTheWall.com:
Hot News Doctrine Alive and Kicking; Will News Aggregators Be Next?”
(March 23, 2010) ………………………………………………………..…6

Copyright Act of 1976, 17 U.S.C. § 107……………………………………9
                        STATEMENT OF INTEREST

   This brief is filed by AHN Media Corp., an Internet-based wire service

based in West Palm Beach, Florida. AHN Media provides legislative, human

interest and business news, weather, and other news content for Web sites,

wireless, digital signage, interactive applications, broadcast and print use. The

company’s content services are used worldwide by Web sites, newspapers,

digital signage networks, TV/radio stations, magazines, portals, charities,

governmental entities, educational institutions and other organizations.

   The news content generated by AHN Media includes information from

public sources, such as public meetings, legislative hearings, press conferences,

academic and government reports and information posted on the Internet.

   The information taken from the Internet often is posted the same day it

appears on AHN Media’s news service, entitled All Headline News, and

syndicated to AHN Media’s global customers. All of the information is derived

from facts commonly available from a combination of the abovementioned

sources.

    As such, AHN Media retains an interest in any case law that could restrict

the flow of news over the Internet.

   AHN Media files this amicus brief with consent of counsel for both parties,

                                          1.
   namely Glenn Ostrager, Esq., on behalf of TheFlyOnTheWall.com and

Jonathan Bloom, Esq., on behalf of Barclays Capital, Inc., Merrill Lynch,

Pierce, Fenner & Smith Inc., and Morgan Stanley & Co., Inc.

                         __________________

   1. No counsel for a party wrote this brief and no counsel made a monetary
      contribution to pay for the submission of this brief. No person other than
      amicus or counsel for amicus funded the preparation or submission of
      this brief.




                                         2.
                            SUMMARY OF ARGUMENT

   Amicus believes that the Court of Appeals in Barclays v.

TheFlyOnTheWall.com should vacate or modify the Permanent Injunction dated

March 18, 2010 to avoid placing further restrictions on the fair use doctrine to

the point that it interferes with the dissemination of news in the public interest

or public domain, as defined under the free speech guarantees of the First

Amendment.

   The Court of Appeals in Barclays is confronting “the phenomenon of the

rapid and widespread dissemination of financial services firms’ equity research

recommendations through unauthorized channels of electronic distribution.”

(Barclays, slip op. at 1)

   Barclays and its co-plaintiffs contend that their stock analysts’

recommendations disseminated by TheFlyOnTheWall.com are “hot news” that

is protected as property until the firms that compiled it release it in a timely

manner. Any organizations that release the information without the financial

firms’ permission have engaged in misappropriation, which violates New

York’s common law of unfair competition, according to the plaintiffs.

   The District Court ruled for Barclays and co-plaintiffs in granting an

                                           3.
      injunction against TheFlyOnTheWall.com that prohibits it from releasing the

   stock analysts’ recommendations before the financial firms have had a first

   opportunity. The FlyOnTheWall.com then appealed.

      The problem with the District Court’s ruling is that it runs the risk of an

   overly broad definition of “hot news.”

      Rather than restricting only the premature and unauthorized release of stock

   analysts’ recommendations, it could be construed to restrict subjective

   judgments of the mainstream media in determining ordinary news

   dissemination and information-sharing that is in the public interest. It also could

   restrict the gathering of news information by lawful means.

      This is the kind of problem the fair use doctrine under the First Amendment

   was designed to avoid.

                                    ARGUMENT

A. The Court of Appeals should vacate or modify the Permanent Injunction dated

   March 18, 2010 to avoid conflicts with First Amendment free speech protections

   for publishing information in the public domain.

      The District Court in Barclays Capital Inc. v. TheFlyOnTheWall.com, 06

   Civ. 4908 (S.D.N.Y. Mar. 18, 2010) granted an injunction against the Internet

                                            4.
financial news service TheFlyOnTheWall.com based largely on its interpretation

of “hot news,” which refers to the unauthorized republication of another

organization’s reports.

    Hot news interpretations date to the Supreme Court case of International

News Service v. Associated Press, 248 U.S. 215 (1918).

    The District Court’s interpretation of hot news creates dangers for news

aggregation services and the more generalized sharing of information over the

Internet, particularly when the gathering and reporting of the news is in the

public interest.

    TheFlyOnTheWall.com gathers its information through sources commonly

used by journalists, which include wire service reports and Web sites. All of

these sources are available publicly and lawfully over the Internet and can be

verified as factual through traditional news gathering.

    The factual nature of the information should give it an added measure of

protection from civil penalties because facts are not protected under copyright

law. Instead, they are in the public domain and freely accessible. (Feist Publ’ns,

Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345 (1991)). (See also

NBA v. Motorola, 105 F.3d 841, 843, 847 (2d Cir. 1997), where the Second

Circuit found that if a “work is in the public domain, then its use would not be

                                        5.
wrongful.” Id. at 851.)

   In addition, the Supreme Court in Feist ruled that “all facts – scientific,

historical, biographical, and news of the day – … ‘may not be copyrighted and

are part of the public domain available to every person.’” Id. at 348, quoting

Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1369 (5th Cir. 1981).

   The District Court was trying to protect the interests of Barclays and other

financial firms that provide clients with stock recommendations.

   As Sam Bayard, assistant director of the Citizen Media Law Project, argues

in a commentary on the ruling, “I’ll leave to the economists the question of

whether or not all this is wise economic policy. But from a legal perspective,

the hot news doctrine creates an obvious tension with copyright law because …

it creates a pseudo property right in facts that copyright law says are in the

public domain.” (See Bayard, Sam, Public Media Law Project, “Barclays v.

TheFlyOnTheWall.com: Hot News Doctrine Alive and Kicking; Will News

Aggregators Be Next?” (March 23, 2010)).

   Unfortunately, the District Court’s ruling avoided a complete analysis of

how hot news misappropriation could trespass into the realm of the First

 Amendment.

   Nevertheless, the Supreme Court has consistently ruled over decades that the

                                         6.
   First Amendment protects truthful speech on issues of public interest or

   concern. (See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 527-28, 533-35 (2001)

   (First Amendment prohibited civil damages under wiretapping law for

   publishing information from a conversation relevant to public concern); (Smith

   v. Daily Mail Publ’g Co., 443 U.S. 97, 103-06 (1979) (First Amendment barred

   prosecution for publishing juvenile offenders’ names without court permission).

      As a result, “if a newspaper lawfully obtains truthful information about a

   matter of public significance, then state officials may not constitutionally

   punish publication of the information, absent a need to further a state interest of

   the highest order.” (Smith, 443 U.S. at 103; accord Bartnicki, 532 U.S. at 527-

   28).

      In the case of TheFlyOnTheWall.com, as well as other news aggregators, the

   First Amendment should protect the publishers from liability for any

   information they obtained through lawful means.

B. The District Court’s ruling overlooked the social benefit of news aggregators,

   which creates special dangers for the public interest.

      Most news aggregators combine reports from a variety of public sources to

   serve specific audiences.

                                           7.
   As a result, news aggregators are adding value to the news they provide

customers. They also produce unique products that may only marginally rely on

wire reports or Web sites. Just as often, the reports can be based on public

meetings, phone calls or responses to e-mails they send to sources.

   The Barclays ruling undervalues the social benefit of news aggregators.

   The social benefit, or public interest, of freely available information from the

Internet used by news aggregators can weigh against any claims of copyright

infringement.

   An example is the Zapruder film of the assassination of President Kennedy,

which was purchased and copyrighted by Time magazine.

   The courts refused to uphold the copyright in the name of the public interest

when Time magazine tried to enjoin the reproduction of still images from the

film in a history book on the subject. (Time Inc. v. Bernard Geis Assocs., 293 F.

Supp. 130 (S.D.N.Y. 1968)).

   In addition, customers of the news aggregators typically are paying for a

unique slant on the news that cannot be found in most other news reports.

   News organizations whose stories provide some of the information used by

news aggregators would be unable to prove economic damage.

                                        8.
   Proof of a damaging effect of the use upon their potential market is a

prerequisite for any valid copyright infringement claim under the four-pronged

test for fair use.

   The fair use doctrine allows limited use of copyrighted material without

requiring permission from the rights holders, such as for commentary, criticism,

news reporting, research, teaching or scholarship. It is incorporated into the

Copyright Act of 1976, 17 U.S.C. § 107.

   Section 107 defines fair use as a “limitation” on copyright law and states

clearly that “the fair use of a copyrighted work … is not an infringement of

copyright.”

                                 CONCLUSION

   As a result, Amicus believes any court ruling in Barclays Capital Inc. v.

TheFlyOnTheWall.com should seek to avoid interpreting the hot news doctrine

in a way that restricts publication of truthful information on issues of public

concern that is acquired through lawful means. To avoid a conflict with the

First Amendment and prevent irreparable harm to Defendant-Appellant and the

public, Amicus asks this Court to vacate or modify the Permanent Injunction

dated March 18, 2010.


                                        9.
Respectfully submitted,

June 16, 2010

by

/Tom Ramstack/


Thomas P. Ramstack
District of Columbia Unified Bar No. 424711
800 4th Street SW, No. N517
Washington, D.C. 20024-3037
Counsel For Amicus Curiae of AHN Media Corp.

Phone: (202) 479-7240




                                  10.
      FEDERAL RULES OF APPELLATE PROCEDURE FORM 6.
        CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

         Certificate of Compliance with Type-Volume Limitation,
          Typeface Requirements and Type Style Requirements

   This brief complies with the type-volume limitation of Fed.R.App.

32(a)(7)(B) because this brief contains 2,040 words, excluding the parts of the

brief exempted by Fed.R.App.P. 32(a)(7)(B)(iii).

   This brief complies with the typeface requirements of Fed.R.App. 32(a)(5)

and the type style requirements of Fed.R.App.P. 32(a)(6) because this brief has

been prepared in a proportionally spaced typeface using Microsoft Word 2007

in Times New Roman, Font Size 14.



Dated: June 16, 2010

/Tom Ramstack/


Thomas P. Ramstack
Counsel For Amicus Curiae of AHN Media Corp.




                                      11.
                       Case No. 10-1372 CV

                             In The
      United States Court of Appeals for the Second Circuit
                      ______________
BARCLAYS CAPITAL, INC., MERRILL LYNCH, PIERCE, FENNER &
   SMITH INCORPORATED, AND MORGAN STANLEY & CO.,
                       INCORPORATED,

                              Plaintiff-Appellees,

                                       v.

                    THEFLYONTHEWALL.COM, INC.

                             Defendant-Appellant

               MOTION FOR ADMISSION PRO HAC VICE

   Pursuant to Rule x, Section x of the Rules of the Federal Rules of Appellate

Procedure, I hereby move for the admission pro hac vice of the following

attorney for practice before this Court with regard to the above-captioned case:

Thomas P. Ramstack
800 4th Street SW, No. N517
Washington, DC 20024
Phone: (202) 479-7240
Counsel For Amicus Curiae of AHN Media Corp.
Member in good standing of the bar of the District of Columbia (D.C. Bar No.
424711)

Dated:
Respectfully submitted,

				
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