Theflyonthewall decision does not give aggregators a free pass

By Alison Frankel

The views expressed are her own.

On its face, Monday’s ruling by the U.S. Court of Appeals for the Second Circuit in Barclays v. seems like a win for the folks who republish the news.

The Second Circuit, in an 88-page ruling (including a majority opinion written by Judge Robert Sack for himself and Judge Rosemary Pooler and a concurring opinion by Judge Reena Raggi) found that a financial news website called Theflyonthewall had not engaged in “hot news” misappropriation when it ran headlines about stock recommendations by Barclays, Merrill Lynch, and Morgan Stanley. (The rarely-invoked hot news doctrine provides copyright holders a cause of action outside of copyright law.) As Jon Stempel reported for Reuters, that’s undoubtedly a loss for the banks and their lawyers at Weil, Gotshal & Manges, who had won a lower-court injunction against Fly’s reporting by arguing that the banks were losing trading commission revenue as a result of Fly’s misappropriation. The ruling is great news for Fly, which no longer has to fear a bar on its reporting of analyst recommendations, and for Fly’s longtime counsel, Glenn Ostrager of Ostrager Chong Flaherty & Broitman.

Google and Twitter also claimed victory. The companies had supported Fly with a joint amicus brief, and their lawyer, Kathleen Sullivan of Quinn Emanuel Urquhart & Sullivan told The New York Times that the Second Circuit’s ruling “acknowledges the reality of new media,” she said. “It’s a great decision for the free flow of information in the new media age.”

Perhaps, but the Second Circuit’s decision is certainly not a free pass for aggregators to appropriate headlines and blurbs from journalism companies without fear of liability for misappropriation. The Second Circuit opinion leaves the hot news doctrine in place. And more importantly, it pays great heed to the craft of reporting and breaking news-which is exactly what you’d expect in a decision written by Judge Sack, a onetime media lawyer who represented Dow Jones and Times Mirror when he was in private practice at Gibson, Dunn & Crutcher.

The majority opinion draws a distinction between making news and breaking it. When a bank issues a stock recommendation, the Second Circuit found, the fact of that recommendation is news. Theflyonthewall doesn’t have the right to republish the underlying analysis that led to the recommendation; Fly actually conceded copyright infringement for cribbing from analysts’ reports before the case reached the Second Circuit. But according to the Second Circuit, Fly has the right to uncover and report on the fact that a bank has issued a stock recommendation, even if Fly’s reporting means the bank loses commission revenue.

Tech wrap: LulzSec hackers seek greener pastures

The LulzSec group of rogue hackers threatened to steal classified information from governments, banks and other high-ranking establishments, teaming up with the Anonymous hacker activist group to cause more serious trouble in an escalation of their cyber attacks.

LulzSec had said last Friday that it hacks to have fun and to warn people that personal information is not safe in the hands of Internet companies. But two days later, Lulz said its top priority was to leak “classified government information, including email spools and documentation.”

The FBI said it is working to bulk up its cyber division as hackers focus on higher-profile targets, but is at the mercy of a Congress struggling to cut the massive budget deficit.

Nokia’s N9 is Windows phone preview

The walking dead never looked so good.

Yes, Nokia promised to release a phone this year based on the MeeGo OS, a merger between the company’s Linux Maemo software platform with Intel’s Moblin, also based on Linux. But the soon-to-be former No.1 handset maker later announced that it would be their last, relegating MeeGo and Nokia’s other OS, Symbian, to zombie status.

Would-be smartphone buyers don’t fancy buying into an apps ecosystem with no potential for growth. And Nokia’s announcement that it would abandon its Symbian OS platform in favor of Microsoft’s Windows phone software should have been a lesson. Yet, Nokia still has plans to release Symbian-based models while it loses ground in key markets like China as smartphones become cheaper and alternatives proliferate.

Never mind that the N9 is as good looking as they come. Made from a single piece of polycarbonate plastic, it won’t leave unsightly marks if the body is dented. And the 3.9″ curved screen won’t easily scratch since it’s made from Corning’s ultra-tough Gorilla Glass. Wired’s Charlie Sorrel compares the N9’s aesthetics to “a giant iPod Nano, in a very good way.

Assigning value to online content

A Los Angeles-based company is attempting to accomplish what online publishers have been chasing for the past 15 years — namely, placing value on a piece of content.

JumpTime, founded by a group of former executives from the likes of MTV Networks and Yahoo, this month is taking the wraps off a  software service that affixes a price tag to articles in real time. It also helps determine the future value of those articles.

Over the past four years, the company has worked with leading publishers such as MSNBC and ESPN.

ICANN haz .youridentityhere

Manhattan Skyline, by Mario Carvajal. Used with gratitude via a Creative Commons license.

Brother, can you spare $185,000?

It’s web name land rush time again, and this time the stakes are pretty high. Also, unlike most previous attempts by the Internet Corporation for Assigned Names and Numbers to expand the nameable Internet universe — and repeat the smashing success of .com — ICANN may be onto something this time.

The global agency which decides these things has tried a couple of times since the web’s Big Bang to create new, desirable web property. ICANN changed the world with the original six top level domains — .com, .edu, .gov, .mil, .net, .org and .arpa. Of these, the only top-level domain (TLD), which was meant for the private sector, still accounts for the overwhelming majority of the web names out there — they don’t call it the dot com revolution for nothing.

Social media and the Vancouver riots

Vancouver police arrested almost 100 people after a riot broke out Wednesday, and are looking to lock up more, with the help of YouTube.

The website of the Vancouver Police Department prominently features a special “Hockey Riot 2011″ section where visitors can watch and read a statement by Chief Constable Jim Chu.

Constable Chu has promised to “bring all our resources to bear,” committing “the full weight of the Criminal Justice System [sic] in swiftly apprehending those responsible.”

Is a Facebook iPad App finally coming?

In the nearly 15 months since Apple launched its iPad, there’s been one conspicuous absence for users of the tablet: a Facebook app.

That will change in the coming weeks, as Facebook, the world’s No.1 Internet social network, prepares to unveil an app specially-designed for the iPad, according to a report in the New York Times today.

In development for almost a year, the Facebook iPad app is now in its final stages of testing and has received close attention throughout the process from Facebook CEO Mark Zuckerberg, the Times reported, citing anonymous sources. The report said the app will have capabilities beyond what’s available on Facebook’s website, such as specialized video and photo features.

Tech wrap: The Web is about to get some new domains

Brand owners will soon be able to operate their own parts of the Web — such as .apple, .coke or .marlboro — if the biggest shake-up yet in how Internet domains are awarded is approved.

Today, just 22 generic top-level domains exist — .com, .org and .info are a few examples — plus about 250 country-level domains like .uk or .cn.

The move is seen as a big opportunity for brands to gain more control over their online presence and send visitors more directly to parts of their sites — and a danger for those who fail to take advantage.

Tech wrap: Government bringing knife to cyber gun fight?

A recent wave of computer network attacks has boosted concerns about U.S. vulnerability to digital warfare. The Obama administration is racing on multiple fronts to plug the holes in the U.S. cyber defense, focusing on an expanded effort to safeguard its contractors from hackers and building a virtual firing range in cyberspace to test new technologies.

However, the overall gap appears to be widening, as adversaries and criminals move faster than the government and corporations can respond, officials and analysts say.

Microsoft has made available a Windows 7-compatible test version of the software behind its hit Kinect motion-sensing game device, in the hope that developers will invent a host of “hands-free” features for standard PCs.

Tech wrap: Nokia wins big in patent fight with Apple

Nokia is likely to be paid hundreds of millions of dollars by Apple after victory in a legal wrangle over technology used in its arch-rival’s top-selling iPhone. Nokia said the deal would boost second-quarter earnings. Analysts said it was clear the sums involved would be significant, with some experts estimating Apple’s one-off payment at $650 million.

J.C. Penney is bringing in Ron Johnson, Apple’s senior vice president of retail, who oversaw the iPad maker’s wildly successful foray into brick and mortar stores as its new chief executive. Johnson will take the reigns November 1, Penney said.

The recent string of sensational hacker attacks is driving companies to seek “cyberinsurance” worth hundreds of millions of dollars, even though many policies can still leave them exposed to claims, writes Ben Berkowitz. Insurers and insurance brokers say demand is soaring, as companies try to protect themselves against civil suits and the potential for fines by governments and regulators, but also as they seek help paying for mundane costs like “sorry letters” to customers.