Second Circuit Finds That Settlement Prices Listed on New York Mercantile Exchange Are Not Afforded Copyright Protection

Case: N.Y. Mercantile Exch., Inc. v. IntercontinentalExch., Inc.,No. 05-5585 (2d Cir. August 1, 2007)

The One Sentence Summary: Under the merger doctrine, settlement prices are not afforded copyright protection because to do so would effectively accord protection to the idea itself.

What They Were Fighting About: Plaintiff is in the business of determining and publishing settlement prices for futures contracts. These settlement prices are used to value individual accounts. In conducting its business, Defendant forwards Plaintiff’s settlement prices to a third-party. Plaintiff sued, alleging copyright infringement. In its defense, Defendant argued, in the alternative, that settlement prices are facts that cannot be copyrighted and, even if they are not facts, the idea of the prices have merged with their expression and thus, are not protected under copyright law.

Second Circuit Holdings:

• The Court chose not to address whether settlement prices are original. Instead, for purposes of Defendant’s motion for summary judgment, the Court assumed that settlement prices could be protected, but nonetheless, granted Defendant’s motion based on the merger doctrine.


• The Court found that “‘[i]t has been long accepted that copyright protection does not extend to ideas; it protects only the means of expression employed by the author.’ Because ‘ideas are too important to the advancement of knowledge to permit them to be under private ownership,’ and because ‘open public debate, which is essential to a free democratic society, requires free access to the ideas to be debated,’ ideas cannot be copyrighted. Instead, ‘only the manner of [an idea’s] ‘expression’’ is copyrightable.” (internal citations omitted). Under the merger doctrine, “even expression is not protected in those instances where there is only one or so few ways of expressing an idea that protection of the expression would effectively accord protection to the idea itself.”


• Given that there was only one way to express the settlement prices for futures contracts (i.e., a number), the Court held that “[t]o grant NYMEX copyright protection here ‘would effectively accord protection to the idea itself.’”