"Stolen" LinkedIn Profiles and the Misappropriation of Ideas

"Stolen" LinkedIn Profiles and the Misappropriation of Ideas

Tags: copyright, misappropriation, defendant, plaintiff, doctrine, information, claims, federal, protection, expression

The common law tort of "hot news" misappropriation has been dying a slow and justified death. Hot news misappropriation is the legal doctrine on which news outlets like the Associated Press have repeatedly relied over the years to try to prevent third-party dissemination of factual information gathered at the outlets’ expense. Last June, the Second Circuit Court of Appeals dealt a blow to the hot news doctrine when it held that financial firms engaged in producing research reports and recommendations concerning publicly traded securities could not prevent a third party website from publishing news of the recommendations soon after their initial release. The rationale for the court’s decision was that state law claims of hot news misappropriation can only very rarely survive federal preemption by the Copyright Act, which excludes facts from the scope of copyright protection. The rule that facts are not eligible for copyright (called the fact-expression dichotomy) is at the heart of the copyright system and serves the interests of democracy by promoting the unfettered dissemination of important news to the populace. Creative arrangements of facts can be protected under copyright law, but individual facts cannot.

Given the declining fortunes of the hot news doctrine, I was a little surprised to discover a recent case out of Pennsylvania called Eagle v. Morgan, in which the parties are fighting over ownership of a LinkedIn account containing the plaintiff’s profile and her professional connections. The defendant, Eagle’s former employer, asserted a state law counterclaim for misappropriation of ideas. Ideas, as it happens, are—like facts—excluded from the scope of federal copyright protection for a compelling policy reason: If we permit the monopolization of ideas themselves, we will stifle the communal intellectual progress that intellectual property laws exist to promote. Copyright law thus protects only the expression of ideas, not ideas themselves. (This principle is known as the idea-expression dichotomy.) Accordingly, section 102(b) of the Copyright Act denies copyright protection “to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied.” The statute really could not be clearer.

In its opinion denying Eagle’s motion for judgment on the pleadings, the trial court did not consider whether the state law tort of misappropriation of ideas is federally preempted by the Copyright Act, which seems to me to be a really important legal question. The court explained that a claim for misappropriation of an idea in Pennsylvania has two elements: “(1) the plaintiff had an idea that was novel and concrete and (2) the idea was misappropriated by the defendant.” To determine whether a misappropriation has occurred, the court further explained, Pennsylvania law requires consideration of three factors:

(1) the plaintiff “has made substantial investment of time, effort, and money into creating the thing misappropriated such that the court can characterize the ‘thing’ as a kind of property right,” (2) the defendant “has appropriated the ‘thing’ at little or no cost such that the court can characterize the defendant’s actions as ‘reaping where it has not sown,’” and (3) the defendant “has injured the plaintiff by the misappropriation.”

Setting aside the oddity of classifying digital information as a “thing,” the first of these factors collides head on with the Supreme Court’s clear repudiation in Feist Publications v. Rural Telephone Service of the “sweat of the brow” theory of intellectual property.

In Feist, the Court held that “sweat of the brow” as a justification for propertizing information “eschew[s] the most fundamental axiom of copyright law—that no one may copyright facts or ideas.” Given copyright law’s express prohibition on the propertization of ideas, there is a strong case to be made that state law claims for misappropriation of ideas are in direct conflict with both the letter and spirit of the federal copyright scheme. On that basis, they are akin to claims of hot news misappropriation, and they should likewise be treated as preempted.

Not yet rated. Be the first:

<< Previous Article      Next Article >>



Amir said... Rating: 0   Vote +   Vote -  

agajagaBedJaga より:These womenAfter the thing It may be called, I am Pocket montesr (It is not to saying and is American slang word) " is determined, this costume play might be done.

11/6/2012 2:06:47 AM 

weight loss pills said... Rating: 0   Vote +   Vote -  

LdGkBk wow, awesome blog.Really thank you! Want more.

1/26/2013 4:51:57 AM 

buy stendra said... Rating: 0   Vote +   Vote -  

wtauD2 Really enjoyed this article post.Thanks Again. Cool.

2/14/2013 8:18:27 PM 

clomid no prescription said... Rating: 0   Vote +   Vote -  

L87cm9 Thanks so much for the article. Will read on...

2/24/2013 10:51:50 PM 

ciprofloxacin hcl said... Rating: 0   Vote +   Vote -  

I really enjoy the blog post.Much thanks again. Will read on...

3/15/2013 10:57:15 AM 

bookmarks said... Rating: 0   Vote +   Vote -  

9ITt0b Really enjoyed this blog article.Really looking forward to read more.

3/15/2013 2:20:19 AM 

buy generic viagra said... Rating: 0   Vote +   Vote -  

I appreciate you sharing this blog post.Really thank you! Really Great.

3/15/2013 12:36:20 PM 

cialis online said... Rating: 0   Vote +   Vote -  

Im grateful for the article post.Much thanks again. Really Cool.

3/15/2013 2:15:35 PM 

no prescription said... Rating: 0   Vote +   Vote -  

Major thanks for the blog article.Really thank you! Keep writing.

3/15/2013 3:55:55 PM