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Barclays Capital Inc. v. Theflyonthewall.com, Inc.

United States Court of Appeals for the Second Circuit
650 F.3d 876 (2d Cir. 2011)


Barclays Capital Inc. and other banks (plaintiffs) provided research and reporting services on publicly traded corporations. The creation of the banks’ recommendation reports involved substantial effort on behalf of hundreds of research analysts. The banks provided data, analyses, and investment recommendations to large investors with brokerage accounts at the banks. The reports were complimentary, and the banks used the reports to encourage brokerage clients to execute trades. The banks then profited by charging commissions on those trades motivated by the reports. Theflyonthewall.com, Inc. (Fly) (defendant) was a news aggregator service. Fly provided subscribers with an online newsfeed. The newsfeed included headlines reflecting the banks’ trading recommendations. The banks sued Fly, alleging various causes of action including misappropriation of the banks’ recommendations. The banks’ misappropriation theory characterized the recommendations as “hot news.” The banks prevailed at trial, and the court entered an injunction. On appeal, Fly argued that the federal Copyright Act preempted the banks’ misappropriation claim.

Rule of Law


Holding and Reasoning (Sack, J.)

Concurrence (Raggi, J.)

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