The Citizen Media Law Project, EFF, and Public Citizen have jointly submitted an amicus curiae brief to the Second Circuit Court of Appeals, urging the court to apply First Amendment scrutiny to the “hot news misappropriation” doctrine in Barclays Capital, Inc. v. Theflyonthewall.com, Inc. The Harvard Law School Cyberlaw Clinic assisted the coalition in preparing the brief.

We've been keenly interested in this case ever since Judge Cote issued her decision in March requiring Fly to delay its reporting on the stock recommendations of several Wall Street firms. The case promises to be an important development in the law of  "hot news misappropriation," a controversial quasi–intellectual property doctrine that creates a temporary property right in time-sensitive facts. As we explain in the brief, the hot news doctrine raises serious First Amendment concerns because it plainly contemplates restricting the publication of truthful information on matters of public concern, regardless of how that information is obtained.

Here's an excerpt from the Berkman Center press release:

The Citizen Media Law Project (CMLP), with the Electronic Frontier Foundation (EFF), and Public Citizen, submitted an amicus curiae brief to the United States Court of Appeals for the Second Circuit, urging the court to apply First Amendment scrutiny to the recently resurgent “hot news misappropriation” doctrine in Barclays Capital, Inc. v. Theflyonthewall.com, Inc.  The coalition worked with Harvard Law School's Cyberlaw Clinic on the brief.

The case involves a financial news website Theflyonthewall.com ("Fly") that reports on equity research from Wall Street investment firms.  Several firms sued the website, claiming that Fly’s reporting of their stock recommendations before the market opens constitutes hot news misappropriation.  The United States District Court for the Southern District of New York agreed and issued an injunction requiring Fly to delay its reporting of these recommendations until later in the day.  The injunction applies even when Fly obtains information about the recommendations from published news reports.  Fly appealed to the Second Circuit.

The amicus coalition did not support either side in the case, but rather asked the appellate court to consider the strong First Amendment protections the Supreme Court has developed to encourage and protect the sharing of truthful statements on matters of public concern.  The Supreme Court created the hot news tort in 1918, before the advent of modern free speech jurisprudence, and no court has seriously addressed the tension between the doctrine and the First Amendment.  The brief highlights a long line of Supreme Court cases protecting truthful reporting of lawfully obtained facts and explores how traditional forms of intellectual property such as copyright and trademark include First Amendment “safety valves” to help ensure their protections do not stifle the free flow of information and vigorous public debate. 

Amici argue in the brief that First Amendment protection for sharing factual information is especially important in today’s online media environment.  “The hot news doctrine was conceived in an era of top-down newsgathering and dissemination, and the Second Circuit has an opportunity in this case to calibrate the doctrine to today’s democratic, conversational model of news and information sharing,” said CMLP Assistant Director Sam Bayard.  “Fast-paced online dissemination of news, such as we saw in the wake of January’s earthquake in Haiti or the 2009 Iranian elections, could be stalled or chilled if hot news plaintiffs can claim a property right in facts, even for a short time.”

CMLP collaborated with the Cyberlaw Clinic and EFF in preparing the brief.  Sam Bayard of CMLP worked closely on the brief with EFF Senior Staff Attorney Corynne McSherry, Cyberlaw Clinic Assistant Director Christopher Bavitz, and Clinic legal interns Sara Croll, a rising 2L at Harvard Law School, and Andy Sellars, a rising 3L at The George Washington University Law School.  CMLP and the Cyberlaw Clinic are based at Harvard’s Berkman Center for Internet & Society.

A number of other amicus briefs were filed, including one submitted by Google and Twitter arguing that the hot news doctrine runs afoul of the Copyright Clause and that the scope of the trial court's injunction violates the First Amendment. A large coalition of media organizations also filed a brief, but we have not had a chance to read it yet. At the very least, these briefs (and several others) will surely impress upon the Second Circuit the importance of the issues it faces in this case.

Here's EFF's press release on the amicus submission. 

Update:

Here's a reformatted version of our amicus brief.  Here's the media coalition amicus brief.