Since 1956, the television show "The Price is Right" has aired. On September 28, Judge John Koeltl of the SDNY issued a very fine opinion involving a spurious claim to copyright protection for commodities trading settlement prices for futures contracts. (I tried to post this yesterday and had it written, but when I went to publish it, the server was under maintenance and did not save the blog. I was so angry I waited a day before doing it all over again; apologies for the delay).
Plaintiff is the New York Mercantile Exchange, defendant the IntercontinentalExchange, Inc. On each day a futures contract remains open and unexpired, the amount of the required margin deposit changes as the price of the underlying commodity fluctuates. The change in value is determined by an end of the day settlement price. The parties disputed how the settlement prices are calculated, consistent with their litigation positions. NYMEX alleged the price involved judgment and discretion; ICE alleged the price was determined by a mathematical formula. This posturing was the result of some loose language in CCC Information Services, Inc. v. Maclean Hunter Market Reports, 44 F.3d 61 (2d Cir. 1994), that could be read as indicating the availability of protection for the prices themselves. CCC, by the great Pierre Leval, is (and I fully believe he would agree), far too complicated: it was an effort to deconstruct the idea-expression dichotomy in the area of factual compilations. The effort was largely beside the point, though, because the claim in CCC was a compilation claim and defendant had copied substantial parts of the compilation. And it was on this basis that Judge Koeltl properly distinguished CCC in NYMEX.
Plaintif NYMEX however clearly asserted a claim for the individual prices, and not in the compilation thereof, which is what makes the case (and decision noteworthy). One might wonder how NYMEX got a registration for prices. The answer is it didn't. The Copyright Office repeatedly refused registration for the prices and NYMEX then (in my opinion) misused the registration process to get into court with a registration. The Office submitted a very helpful brief to the court. I confess to being baffled by why NYMEX every thought it had a claim for such clearly unprotectible material.