Forget Wiretapping Laws, Now You Might Be Able To Use Copyright Law To Stop Anyone From Recording You Ever

There was a recent ruling in a copyright dispute between Swatch (the watchmakers) and Bloomberg that could have troubling implications concerning wiretapping issues. Effectively, it presents a blueprint for how to use copyright law to block otherwise perfectly legal recordings. At issue was that Swatch held an analysts call, as most public companies do regularly. It's pretty standard for various financial firms to push out transcripts of such calls and to report/analyze them. In this case, Bloomberg recorded the call and offered a transcript to its subscribers. Pretty standard stuff. But... here, Swatch claimed copyright on the call. Why? Because they also recorded it (via a partner company), and since that recording was "fixed," they could claim that it was covered by copyright, and then sued Bloomberg.

This ruling was on a motion to dismiss from Bloomberg, which the judge rejected, claiming that Swatch properly established that it had a valid copyright in the recording. It also declined to rule on the fair use claim at this point, though one hopes that, at a later stage, the fair use argument gets a stronger hearing.

The real problem with this ruling is what it could mean when you think about the consequences. As Paul Alan Levy notes, this appears to expand copyright law "far beyond its intended scope." Think about it for a minute. It means that as long as you record yourself while doing something, you can stop anyone from (a) recording you or (b) quoting you, if they quote an amorphous "too much" of what you said in the recording. It's not hard to see scenarios where this is problematic.

Most obviously, at a press conference (which this Swatch call was quite like), a reporter, who pulls out his or her recorder, could be violating the copyright of whoever is holding the conference. Furthermore, if in the process of reporting on the conference, they quote too much of what was said... well, they could face copyright infringement claims.

But let's take it a step further. We just reported on the Massachusetts ruling that said that recording the police was legal. But... what if the police also recorded themselves... and then claimed copyright on that audio. According to this ruling, it's possible that the copyright would be considered legit, and then you'd have to go to court to argue the fair use claim.

That's clearly not what copyright law is intended for, but it's a very real implication of this ruling.

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