12

- 2412

- cv (L)

Swatch Group v. Bloomberg UNITED STATES COURT OF APPEALS
F OR THE S ECOND C IRCUIT

_______________ August Term, 2013 (Argued: October 21 , 2013 Decided: January 27, 2014 )
Docket No s. 12

- 2412

- cv , 12

- 2645

- cv

_______________ T HE S WATCH G ROUP M ANAGEMENT S ERVICES L TD
. , Plaintiff

- Counter

- Defendant

- Appellant

- Cross

- Appellee ,

— v. — B LOOMBERG L.P. , Defendant

- Counter

- Claimant

- Appellee

- Cross

- Appellant

.

_______________ B e f o r e :
K ATZMANN , Chief Judge , K EARSE , and W ESLEY , Circuit Judges

.

_______________ Appeal and cross

- appeal from a judgment of the United States District Court for the South ern District of New York (Hellerstein , J. ), granting summary2

judgment to the defendant as to the plaintiff’s claim of copyright infrin gement on the ground that the de fendant had engaged in fair use. The p laintiff claims that the defendant, a financial news and data reporting service, infringed the plaintiff’s copyright in a sound recording of a foreign public company’s earnings call with invited investment analysts by obtaining a copy of the recording without authorization and making it available to the defendant’s paying subscribers. We hold, upon consideration of the relevant factors, see 17 U.S.C. § 107, that the defendant’s use qualif ies as fair use. We further grant the plaintiff’s motion to dismiss the defendant’s cross

- appeal because the defendant lacks appellate standing and we lack appellate jurisdiction. For the reasons stated below, the defendant’s cross

- appeal is DISMISSED , and the judgment of the district court is AFFIRMED

.

_______________ J OSHUA P AUL (Jess M. Collen, Kristen Mogavero , on the brief ) , C OLLEN IP, Ossining , NY, for Plaintiff

- Counter

- Defendant

- Appellant

- Cross

- Appellee

. J OHN M. D I M ATTEO (Thomas H. Golden, Ami na Jafri , on the brief ), Willkie Farr & Gallagher LLP, New York, NY, for Defendant

- Counter

- Claimant

- Appellee

- Cross

- Appellant

.

_______________ K ATZMANN , Chief Judge : Thi s case concerns the scope of copyright protection afforded to a soun d recording of a conference call convened by The Swatch Group Ltd. (“Swatch Group”), a foreign public company , to disc uss the company’s recently released earnings report with invited investment analysts . In particular, we must3

determine whether Defendant

- Appellee Blo omberg L.P. (“Bloomberg”), a financial news and data reporting service that obtained a copy of that sound recording without authorization and disseminated it to paying subscribers , may avoid liability for copyright infringement based on the affirmative def ense of “fair use.” 17 U.S.C. § 107. We also must determine whether we have jurisdiction to hear Bloomberg’s cross

- appeal on the issue of whether the sound recording of the conference call is copyrightable in the first instance.
Plaintiff

- Appellant The S watch Group Mana gement Services Ltd. (“Swatch”) , a subsidiary of Swatch Group, appeals from a judgment of the United States District Court for the Southern District of New York (Hellerstein, J. ), which sua sponte granted summary judgment to Bloomberg on Sw atch’s claim of copyright infringement on the ground of fair use

. On appeal, Swatch argues
that the district court’s ruling was premature because Swatch had not yet had the opportunity to take discovery on three issues: (1) whether Bloomberg obtained
and d isseminated the sound recording for the purpose of “news reporting” or for
some other business purpos e ; (2) Bloomberg’s state of mind when it obtained and disseminated the recording ; and (3) whether Bloomberg subscribers actually4

listen to sound recordings of earnings calls, or instead glean informati on about such calls by reading written tran scripts or articles

. Swatch also contends that the
distr ict court erroneously concluded that Swatch had published the sound recording before Bloomberg disseminated it. M ore broadly, Swatch argues that
the dis trict court erred in how it evaluated and balanced the various
considerations relevant to fair use

. For the reasons set forth below , we agre e with
the district co urt and hold that, upon consideration of the relevant factors and resolving all factual disputes in favor of Swatch , Bloomberg has engaged in fair

use. In addition, Bloomberg cross - appeals from the same judgment of the
district court , urging us to hold that Swatch’s sound recording is not protected by the copyright laws in the first place. Swatch has moved to dismiss the

cross - appeal on the ground s that Bloomberg lacks appellate standing and we lack appellate jurisdict ion . That motion is granted. Because the judgment designated in Bloomberg’s notice of appeal was entered in Bloomberg’s favor, Bloomberg is not “aggrieved by the judicial action from which it appeals,” Great Am. Audio Corp. v. Metacom, Inc. , 938 F.2d 16, 19 (2d Cir. 1991) , and therefore lacks standing.5

Similarly, although the district court later dismissed as moot Bloomberg’s
counterclaim for a declaration that Swatch’s copyright is invalid , Bloomberg never filed an additional notice of appeal identifying that subsequent o rder as the subject of an appeal , and thus we hav e no jurisdiction to review it. Accordingly, we affirm the judgment of the district court , and we dismiss
the cross

- appeal

. BACKGROUND
I. Factual Background The following facts are drawn from the record before the district court and

are un disputed unless otherwise noted. On February 8, 2011, Swatch Group released its 2010 earnings report, a

seven - page compilation of financial figures and textua l narrative abo ut the company’s financial performance during the prior year

. Because Swatch Group is incorporated in Switzerland and its shares are publicly tr aded on the Swiss stock exchange , Swatch Group is governe d by Swiss securities law and the listing rules
of the Swiss exchange

. In ac cordance with those rules , Swatch Group filed its earnings report with the exchange before tra di ng opened for the day , and6

simultaneously posted the report in four languages (English, German, French, and Italian) on the Investor Re lat ions section of its website.
After it release d this information to the public, Swatch Group h eld a conference call with an invited group of financial analysts , as is its custom

. Swiss law permits public companies to hold this kind of earnings call w ith a limited group of analysts, provided that the company does not disclose non

- public, significantly price

- s ensitive facts during the call. Here, Swatch Group did not reveal any significantly price

- sensitive facts during the call that had not already
bee n revealed in its previously released report. In advance of the call , Swatch Group sent invitations to all 333 financial analysts who were registered with
Swatch Group ’ s Investor Relations Department

. Swatch Group held the call at 2 p.m. local Swiss time, several hours after it had released the earnings report, in order to allow European, American, and Asian analysts to participate. I n the end, approximately 132 analysts joined the call

. For Swatch Group’s part, its Chief
Executive Officer , C hief F inancial O fficer , and three other senior executives participated in the call from the com pany’s offices in Switzerland.7

At Swatc h Group’s request, an audio conferencing vendor record ed the
entire earnin gs call as it was in progress. At the beginning of the call, an operator
affiliated with the vendor we lcomed the analysts to the call and told them, “This
call must not be recorded for publi cation or broadcast.” J.A. 22. Swatch Group ’s executives then provided commentary about the comp any ’s financial performance an d answered questions posed by fifteen of the anal ysts. The entire call lasted 132 minutes; Swatch Group executives spoke for appr oximately 106 of
those minutes.
Neither Bloomberg nor any other press organization was invited t o the earnings call. Nevertheless, w ithin several minutes after the ca ll ended, Bloomberg obtained a sound recording and written transcript of the call and
made them both available online, without alteration or editorial commentary, to subscribers to its o nline financial research service known as Bloomberg
Professional

. According to Bloomberg’s promotional materials, Bloomberg
Professional provides “[a] massive data stream” with “rich content” that is “unparalleled in scope and depth” and is “delivered to y our desktop in real time,” as well as “access to all the news, analytics, communications, charts,8

liquidity, functionalities and execution services that you need to p ut knowledge
into action.” Id. 640. On February 10, 2011, a fter Swatch Group learned that t he recording and transcript had been made available on Bloomberg terminals, Swatch Group sent Bloomberg a cease

- and

- desist letter d emanding that they be removed. Bloomberg
refused. On February 14, 2011, Swatch then filed its initial complain t agains t Bloomberg in this action claiming infr ingement of its copyright in the sound recording of the earnings call

. In an agreement signed by representatives of Swatch Group and Swatch on February 14 and 15, 201 1 , Swatch Group assigned
its interest in t he copyright to its subsidiary Swatch. Two weeks later, on March 2, 2011, Swatch filed an application with the U.S. Copyrig ht Office to register a copyright in a sound recording of the earnings

c all. The Copyright Office and Swatch then exchanged a series of emails over the scope of the claimed copyright. After Swatch narrowed the copyright to cover only the statements made by Swatch Group execut ives, and not the statements made by the operator or the questions posed by the analysts , the Copyright
Office i ssued a registration on Ap ril 27 , 2011.9

II. Procedural History As stated, Swatch filed its initial complaint in this action on February 14,
2011. Swatch then twice amended its complaint; the operative ple ading thus is
the Second Amended Co mplaint, filed on May 10, 2011. The Second Amended Complaint alleges that, by recording the earnings call and making the recording available to the public, Bloomberg infringed Swatch’s exclusive rights “to reproduce the copyrighted work” and “to distribute copies or phonorecords of the work to the public.” 17 U.S.C. § 106(1), (3). Swatch does not challenge Bloomberg’s preparation or distribution of the written transcript of the earnings
call. 1 On May 20, 2011, Bloomberg moved under Rule 12(b)(6) to dismiss the Second Amended Complaint for failure to state a claim, arguing inter alia that the earnings call was not copyrightable in the first place and that Bloomberg’ s copying and dissemin ation of the call was fair use. The district court denied that
motion in an or der entered on August 30, 2011. Swatch Grp. Mgmt. Servs. Ltd. v.

1 Swatch has disclaimed any such challenge in light of 17 U.S.C. § 114(b), under which a copyright owner’s right to prepare derivative works based on a sound recording “is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise alter ed in sequence or quality.”10

Bloomberg L.P. (“ Swatch I ”), 808 F. Supp. 2d 634 (S.D.N.Y. 2011)

. The district court found that the recording was copyrightable, i d. at 6 3 8

– 3 9, and declined to
address the “fact

- intensive” question s implicated by Bloomberg’s fair use defense on a motion to dismiss, i d. at 641.
At an in

- court conference held two weeks la ter on September 16, 2011, however, the district court informed the parties of its belief that it could resolve the case through a motion for judgment on the pleadings, and directe d Swatch to
file such a motion. Swatch moved as directed on October 21, 2011 , and Bloomberg opposed. The district court held oral argument on December 12, 2011, at which it denied Swatch’s motion and explained that, in the court’s view,
“defendan t’s use qualifies as fair use.” J.A. 581. Later that day, the district court
issued a summary order stating that it had “preliminarily granted judgment to Defendant on the basis that if Defendant’s alleged actions constitute infringement, they are protected as fair use.” Id. 584. The order directed Swatch to submit “a brief regarding the ex istence of any triable issues of material fact with respect to Defendant’s fair use affirmative defense.” Id. Swatch did so, pointing out that it had ta ken no discovery in the action.11

In an opinion and order entered on May 17, 2012 , the district court sua sponte granted summary judgment to Bloomberg, finding that Bloomberg’s copying and dissemin ation of the recording qualify as fair use. Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P. (“ Swatch II ”), 861 F. Supp. 2d 336 ( S.D.N.Y. 2012). On May 18, 2012, the clerk of the district court entered ju dgment “in favor of
defendant.” J.A. 7. On June 14, 2012, Swatch filed a timely notice of appeal fro m that judgment

. On June 28, 2012, Bloomberg filed a notice of cros s - appeal from the same judgment, and on July 24, 2012, Swatch mov ed to dismiss the cross

- appeal. On August 27

, 2012, after the parties had filed a stipulation of dismissal without prejudice to reinstatement under Local Rule 42.1 , the district court issued an order dismissing as moot all o f Bloomberg’s counterclaim s, including the
counterclaim for a declaration that Swatch ’s copyright is invalid

. On November 13, 2012, u pon receipt of a letter from Swatch , t he Clerk reinstated the appeal. Finally, on January 14 , 2013, the mo tions panel of th is Court referred Swatch’s
motion to dismiss the cross

- appeal to the merits panel.12 DISCUSSION We review a district court’s gran t of summary judgment de novo , resolving all ambiguities and drawing all reasonable infere nces against the moving party.
S ee Garanti Finansal Kiralama A.S. v. Aqua Marine & Trading Inc. , 697 F.3d 59, 63

– 64 (2d Cir. 2012)

. Summary judgment is appropriate only where the record shows

“ that there is no genuine disp ute as to any material fact and that the movant is
entitled to judgme nt as a matter of law.” Fed. R. Civ. P. 56(a)

. Under Federal Rule of Civil Procedure 56(f), d istrict courts have discretion to grant summary judgment sua sponte “[a]fter giving notice and a reasonable time to respond” and “after identifying for the parties material facts that may not be genuinely in dispute.” Fed. R. Civ. P. 56(f), (f)(3); see also Celotex Corp. v. Catrett , 477 U.S. 317,
326 (1986) (“[D] istrict courts are widely acknowledged to possess the power to enter summary judgments sua sponte , so lon g as the losing party was on notice that [it] had to come forward with all of [its] evidence.”). Before granting summary judgment sua sponte , however, a district court “ must assure itself that following the procedures set out in Rule 56 [(a)

– (e)] would not alter the outcome. ” Ramsey v. Coughlin , 94 F.3d 71, 74 (2d Cir. 1996)

. In other words , “[d] iscovery13

must either have been completed, or it must be clear that further d iscovery would be of no benefit,” such that “the record . . . reflect [s] the l osing party's inability to enhance the evidence supporting its position and the winning party's entitlement to judgment. ” Id. 2 I

. Fair Use
The Copyright Act of 1976 grants copyright holder s a bundle of exclusive rights, including the rights to “ reproduce, perform publicly, display publicly, prepare derivative works of, and distribute copies of” the copyrighted work.
Arista Records LLC v. Doe 3 , 604 F.3d 110, 11 7 (2d Cir. 2 010) (citing 17 U.S.C. § 106 )

. Because copyright law recognizes the need f or “breathing space,” Campbell v. Acuff

- Rose Music

, Inc. , 510 U .S. 569, 579 (1994), however, a defendant who

o therwise would hav e violated one or more of these exclusive rights may avoid liability if he can establish that he made “fair us e” of the copyrigh ted material. Though of common

- law origin, the doctrine of fair use is now codified at 17

2 Although Ramsey was decided before Rule 56 was amended in 2010 to provide express procedures governing the grant of summary judg ment independent of a motion, its statements regarding the care a district court must take before sua sponte granting summary judgment remain good law. See Fed. R. Civ. P. 56, advisory comm. notes (2010 A mendments) (“Subdivision (f) brings into Rule 56 tex t a number of related procedures that have grown up in practice.”).14

U.S.C. § 107, which provides that “the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copi es for classroom use), scholarship, or research, is not an infringement of copyright.”
T o evaluate whether a particular use qualifies as “fair use,” we must engage in “an open

- ended and context

- sensitive inquiry.” Blanch v. Koons , 467 F.3d 244, 251 (2d Cir. 2006) . T he Copyright A ct directs that , in determining whether a particular use is fair, “the factors to be considered shall include” : (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighte d work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107. T h ough mandatory, these four factors are non

- exclusive. Moreover, “[a] lthough defendants bear the burden of proving that th eir use was fair , they need not establish that each of the factors set forth in § 107 weighs in
their favor .” NXIVM Corp. v. Ross Inst. , 364 F.3d 471, 476

– 77 (2d Cir. 2004)15

(internal citation omitted)

. Rather, “[a] ll [factors] a re to be explored, and the results weighed together, in light of the purposes of copyright.” Campbell , 510
U.S. at 578. “The ultimate test of fair use is whether the copyright law’s goal of promoting the Progress of Science and useful Arts would be better served by allowing the use than by pr eventing it.” Bill Graham Arch ives v. Dorling Kindersley
Ltd. , 448 F.3d 605, 608 (2d Cir. 2006) (quoting Castle Rock Entm’t, Inc. v. Carol Publi’g Grp. , 150 F.3d 132, 141 (2d Cir. 1998) ) (ellipsi s omitted)

. The determi nation of fair use is a mixed question of fact and law. Harper & Row Publi shers, Inc. v. Nation Enter s . , 471 U.S . 539, 560 (1985)

. While we have reversed district courts that too hastily resolve d factual questions relevant to fair use on summary judgment, see, e.g. , Ringgold v. Black Entm’nt Television, Inc. , 126 F.3d 70, 81 (2d Cir. 1997), “this [C] ourt has on a number of occasions resolved fair
use determinations at the summary judgment stage where there are no ge nuine issues of material fact.” Blanch , 46 7 F.3d at 250 ( quoting Castle Rock Entm’t , 150 F.3d at 137) (ellipsi s omitted)

.16

A. Purpose and Character of Use We turn first to “the purpose and character of the use .” 17 U.S.C. § 107(1).
This sta tutory factor encompasses within it a number of distinct considerations, including “ whether [the] use is of a commercial nature or is for nonprofit educational purposes,” id. ; whether the use is “transformative” or “merely supersedes the objects of the ori ginal creation,” Campbell , 510 U.S. a t 579 (quotation marks and brackets omitted); whether the defendant acted in good faith, see NXIVM , 364 F.3d at 478; and whether the defendant engaged in “news reporting” or an other activity illustratively listed in § 107 as indicative of fair use,

see Harper & Row , 471 U.S. at 561. Below, t he district court found that this factor as a whole favored fair use because “[ Bloomberg ]’s work as a prominent gatherer and publisher of business and financial information serves a n important public interest, for the public is served by the full, timely and accurate dissemination of
business and financial news .” Swatch II , 861 F. Supp. 2d at 340

. Swatch argues that this conclusion was error fo r several reasons. First , Swatch conte nds that the district court improperly accepted Bloomberg’s unsubstantiated claim that it had engaged in “news reporting .” Swatch notes that17

Bloomberg itself has characterized its Bloomberg Professional service as delivering both financial “news” and “data ,” and argues that the district court
erred i n denying Swatch the chance to develop facts in discovery to show that the sound recording at issue here is the latter and not the former. Similarly , Swatch argues that the district court improperly denied Swatc h the chance to develop facts relevant to Bloomberg’ s state of mind . Swatch acknowledges that the
district court “credited [Swatch]’s allegations that [Bloomberg] was not
authorized to access the Earnings Call and that [Bloomberg] ’s publication of the Infringing Work violated [Swatch Group’s] directive,” Swatch II , 861 F. Supp. 2d at 343, but argues that Swatch should have been able to take discovery into whether Bloomberg knew at the time that obtaining and publishing the recording
violated Swat ch Group’s directive. Swatch also argues that it should have been permitted to take discovery into whether Bloomberg Professional subscribers actually choose to access information about earnings calls by listening to recordings, or instead by reading writt en transcripts or articles. More broadly , Swatch argues that the district court gave insufficient weight to the fact that18

Bloomberg’s use was commercial and did not transform the underlying recording

. We find these arguments unpersuasive and hold that the first statutory
factor favors fair use here

. To begin with, w hether one describes Bloomberg’s
activities as “news reporting,” “data delivery,” or any other turn of phrase , there can be no doubt that Bloomberg’s purpose in obtaining and disseminating the

r ecording at issue was to make important financial information about Swatch Group available to American investors and analysts

. That kind of inform ation is of critical importance to American securities markets. I ndeed , as Bloomberg points out, the Securities and Exchange Commission (“SEC”) has mandated that
when American comp anies disclose this kind of material nonpublic information , they must make it available to the public immediately. See Regulation FD, 17 C.F.R. § 243.100. At a minimum, a use of copyrighted material that serves this public purpose is very closely analogous to “news reporting , ” which is indicative
of fair use

. See Harper & Row , 471 U.S. at 561 (“ News reporting is one of the

e xamples enumerated in § 107 to ‘ give some idea of the sort of activities the courts might regard as fai r use under the circumstances.’” (quoting S. Rep. No.19

94

- 473, at 61 (1975))

. W e agree with the district court , moreover, that t his important public purpose underlying Bloomberg’s use ov ercomes the countervailing weight we would otherwise give to Bl oomberg’s clandestine methods and the commercial, non transformative nature of its use. 3
S eizing on Bloomberg’s citation to Regulation FD, Sw atch protests that in crafting that regulation , the SEC express ly exempted “foreign private issuer[s]” like Swatch Group that are “incorporated or organized under the laws of [a] foreign country.” 17 C.F.R. §§ 243.101(b), 230.405. In fact, as initially proposed , Regulation FD would have applied to such issuers, see Se lective Disclosure and Insider Trading, 64 Fed. Reg. 72,590, 72,597 (Dec. 28, 1999), but the SEC ultimately “determined to exempt foreign private issuers . . . as it has in the past exempted them from certain U.S. reporting requirements such as Forms 10

- Q and
8

- K,” Selective Disclosure and Insider Trading, 65 Fed. Reg. 51,716, 51,724 (Aug. 24, 2000). Swatch thus argues that giving weight to a public interest in the

3 We have held that where “the allegedly infringing work fits the description of uses described in § 107,” there is “a strong presumption that factor one favors the defendant.” NXIVM

, 364 F.3d at 477 ( quoting Wright v. Warner Books, Inc. , 953 F.2d 731, 736 (2d Cir. 1991) ). R esolving all factual disputes in Swatch’s favor, we assume here that Bloomberg’s use fa lls outside of the core notion of “news reporting” Congress envisioned when it ena cted § 107. W e therefore will not apply the presumption

.20

dissemination of important financial information in this case would in effect erase foreign i ssuers’ exemption from Regulation FD and set up organizations like Bloomberg as private enforcers of U.S. public disclosure rules.
T his argument , however, misapprehends the limited relevance of Regulation FD to this case. The regulation merely provides ad ditional support for a proposition that would be clear in any event: American investors and analysts have an interest in obtaining important financial information about companies
whose securities are traded in American markets. The fact that the SEC has
ch osen not to require foreign issuers to follow certain disclosure rules imposed on domestic issuers in no way implies that information about foreign issuers is
i rrelevant to American markets. Indeed, Swatch Group recognized as much by scheduling its ea rnings call at a time when American analysts would be able to
attend. Accordingly, contrary to Swatch’s suggestion, n othing in our decision today subjects Swatch Group or any other foreign issuer to the requirements of Regulation FD. Nor do we hold that a foreign issuer’s failure to follow Regulation FD prevents it from enforcing its copyrights in the United States. We merely hold
that where a financial research service obtains and disseminates important21

financial information about a foreign company in orde r to make that information available to American investors and analysts, that purpose supports a finding of
fair use. Swatch stands on firmer ground when it stresses the c ommercial nature of Bloomberg’s use. Section 107 expressly directs courts to conside r whether the use “is of a commercial nature or is for nonprofit edu cational purposes,” 17 U.S.C. § 107(1), and we have held that “[t] he greater the private economic rewards reaped by the secondary user (to the exclusion of broader public benefits), the

mo re likely the first factor will favor the copyright holder and the less likely the
use will be considered fair .” Am. Geophysical Union v. Texaco Inc. , 60 F.3d 913, 922 (2d Cir. 1994)

. I t is undisputed here that Bloomberg is a commercial enterprise
and that Bloomberg Profess ional is a subscription service available to paying users. At the same time, we have recognized that “[a] lmost all newspapers, books and magazines are published by commercial enterprises that seek a profit ,” Consumers Union of U.S. , Inc. v. Gen. Signal Corp. , 724 F.2d 1044, 1049 (2d Cir. 1983) , and have discounted this consideration where “the link between [the defendant]’s commercial gain and its copying is . . . attenuated ” such that it22

would be misleading to characterize the use as “ commercial exploitation.” Am. Geophysical Union , 60 F.3d at 922. Here, Swatch does not contest that Bloomberg Professional is a multifaceted research service, of which disseminating sound recordings of earnings calls is but one small part. Moreover, it wou ld strain credulity to suggest that providing access to Swatch Group’s ea rnings call more than trivially affected the value of that service. So while we will not ignore the commercial nature of Bloomberg’s use, we assign it somewhat reduced weight.
Bloomb erg’ s lack of good faith likewise merits relatively little weight in
this case. “ [W] hile the good or bad faith of a defendant generally should be considered, it generally contributes little to fair use analysis. ” NXIVM , 364 F.3d at 479 n.2 (citing Campbell , 510 U.S. at 585 n. 18 ). Bloomberg does not dispute that it obtained the recording of the earnings call in violation of Swatch Group’s express
directive that the call “ must not be recorded for publication or broadcast, ” J.A. 22, and , resolving all factual disputes in Swatch’s favor, we must assume Bloomberg was fully aware that its use was contrary to Swatch Group’s
instructions . But Bloomberg’s overriding purpose here was not to “scoop[]”
Swatch or “supplant the copyright holder’s c ommercially valuable right of first23

publication,” Harper & Row , 471 U.S. at 562, but rather simply to deliver newsworthy financial information to Amer ican investors and analysts. T hat kind of activity, whose protection lies at the core of the First Amendme nt, would be crippled if the news media and similar organizations were limited to authorized
sources of information. See generally New York Times Co. v. United States , 403 U.S. 713 (1971).
Fair use must also take account of the transformativeness of the u se
— that is, the degree to which “the new work merely supersedes the objects of th e original creation , or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message .” Campbell , 51 0 U.S. at 579 (internal citations, quotation marks and alterations omitted). While a transformative use generally is more likely to qualify as fair

use , “ transform ative use is not absolutely necessary for a finding of fair use,” id. , and indeed, some core examples of fair use can involve no transformation
whatsoever. See 17 U.S.C. § 107 (listing “ multiple copies for classroom use” among illustrative examples of fair use).24

In the context of news reportin g and analogous activities, mo reover, the need to convey information to the public accurately may in some instances make
it desirable and consonant with copyright law for a defendant to fait hfully reproduc e an original work rather than transform it

. In such cases, courts often
find tra nsformation by emphasizing the altered purpose or context of the work ,

as evidenced by surrounding commentary or criticism. See, e.g. , Bill Graham
Archives , 448 F.3d at 609

– 610 ; Nunez v. Caribbean Int'l News Corp. , 235 F.3d 18,
22

– 23 (1st Cir. 2000) . Here, Bloomberg provided no additional commentary or analysis of Sw atch Group’s earnings call. B ut by disseminating not just a written transcript or article but an actual sound recording, Bloomberg was able to convey with precision not only what Swatch G roup’s executives said, but also how they
said it. This latter type of information may be just as valuable to investors and analysts as the former , since a sp eaker’s demeanor, tone, and cadence can often
elucidate his or her true beliefs far beyond what a stale transcript or summary can show

. As courts have long recognized in the context of witness testimony , “ ’ a

c old transcript contains only the dead body of the evidence, without its spirit,’”
and “cannot reveal . . . ‘ [the speaker’s] hesitation, his doubt s, his variations of25

language, his confidence or precipitancy, his calmness or consideration. ’ ” Z hou
Yun Z hang v. INS , 386 F.3d 66, 73

– 74 (2d Cir. 2004) (quoting Regina v. Bertrand , L.R. [1867] 1 L.R.P.C. 520, 535) , overruled on other grounds by Shi Liang Lin v. U.S. Dep't of Justice , 494 F.3d 296 , 305 (2d Cir. 2007)

. To be sure, “[t] he promise of copyright would be an empty one if it could be avoided merely by dubbi ng the infringement a fair use ‘news report

. ’” Harper
& Row , 471 U.S. at 557

. But here, in light of the independent informational value
inherent in a faithful recording of the earnings call , the fact that Bloomberg did
not transform Swatch’s work through additional commentary or analysis does not preclude a finding that the “ purpose and character” of Bloomberg’s use
favors fair use

. Our decisions in Nihon Keiz ai Shimbun, Inc. v. Comline Business Data, Inc. , 166 F.3d 65 (2d Cir. 1999) , Wainwright Securities, Inc. v. Wall Street Transcript Corp. , 558 F.2d 91 (2d Cir. 1977) , and F inancial Information , Inc. v. Moody's Investors
Service , Inc. (“ FII ”) , 751 F.2d 501 (2d Cir. 1984) , on which Swatch relies, are not to the contrary. In those cases, we rejected fair use arguments pressed by defendants who purported to be serving the publ ic by providing access to26

important financial information. In Nihon and Wainwright , we stressed that the defendants had not supplemented or otherwise transformed the plaintiffs’ works, but had instead simply translated Japanese business articles into Engli sh,
Nihon , 166 F.3d at 69, or recounted the critical c onclusions and predictions from research reports about major industrial an d financial corporations, Wainwright , 558 F.2d at 93 & n.1. I n FII , we rejected a fair use defense by a ratings agency that had copied information about municipal bond redemptions compiled by a competing financial publisher

. FII , 751 F.2d at 502

– 03. Criticizing the district court’s conclusion that the defendant’s use served a “public function,” we stated that to so hold “would, it seems to us, state a rule that whenever there is a market for information, the paid delivery of goods to that market rises to a public
function.” Id. at 509. We rejected such a rule , finding that it would “d istort” proper fair use analysis. Id.
In all three of these cases , however, the defendants appropriated works in which the copyright owner had transformed raw financial information by compiling it from multiple sources or by mixing it with their own comme ntary and analysis. Here, by contrast, the stateme nts captured in the sound recording ,27

including the particular modes of expression used by Swatch Group’s executives ,

were themselves pieces of financial information. In other words, while our previous cases concerned the appropriation of secondary sources that had compiled or commented on financial news, this case concerns the use of a primary source that itself was financial news. We find this distinction significant. As the Supreme Court has observed, “ [t ]he news element

— the information respecting current events contained in the literary production

— is not the creation of the writer, but is a report of matters that ordinarily are publici juris ; it is the history of the day. ” Harper & Row , 4 71 U.S. at 556 (q uoting Int’l News Serv. v.
Assoc. Press , 248 U.S. 215, 234 (1918)). The discovery Swatch seeks w ould not alter our analysis

. With respect to the request for discovery into whether Bloomberg delivered “news” or “data” to its subscribers, suc h a distinction raises a semantic rather than factual dispute . It is undisputed that Bloomberg gave subscribers access to the full, unaltered sound recording of Swatch Group’s earnings call as part of its paid financial research
service. That is sufficient for present pu rposes. There is likewise no need for further discovery into Bloomberg’s good or bad faith, for we, like the district28

court, have resolved that subfactor in Swatch’s favor. We also see no need to resolve how many of Bloomberg’s subscribers chose to listen to the sound recording in question rather than read a written transcript or article. As we have explained, because the sound recording conveys information that a transcript or article cannot, the recording has independent value, regardless of how many Bloo mberg subscribers chose to avail themselves of that independent value in
this instance. This first factor accordingly favors fair use.
B. Nature of the Copyrighted Work The second statutory fair use factor concerns “the nature of the copyrighted work.” 1 7 U.S.C. § 107(2). This factor accounts for the fact that “ some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied .” Campbell , 510 U.S. at 586. As relevant here, this factor requires us to consider the extent of Swatch’s copyright in the recording

— the “thickness” or “thinness” of Swatch’s exclusive rights

— as well as whether or not the recording
had been published at the time of Bloomb erg’s use. See id. (citing cases). The29

district court determined that this factor favored fair use because Swatch’s copyright was “at best . . . ‘ thin ’ ” and because “the first publication of Swatch Group’s expression occurred prior to [Bloomberg]’s publica tion of the Infringing
Work.” Swatch II

, 861 F. Supp. 2d at 341. Swatch argues that the district court erred in concluding that the recording had been published. Swatch points out that t he Copyright Act contemplates two methods of publishing an audio reco rding: “the distribution of . . . phonorecords of a work to the public by sale or other transfer of ownership , or b y rental , lease, or lending,” or “offering to distribute . . . phonorecords to a group of persons for purposes of further distribution, publi c pe rformance, or public display.” 17 U.S.C. § 101 (defining “publication”). “Phonorecords,” in turn, are defined as “material objects in which sounds . . . are fixed . . . and from which the sounds can be perceived, reproduced , or otherwis e communicated .” Id. Applying these definitions, Swatch contends that the sound recording of the earnings call has never been published. Si mply put, Swatch has never , before or after Bloomberg’s

use, “distribut [ e d] ” a CD or other “material object” embodying the spoken commentary on the earnings call “to the public,” nor has it ever “offer[ed] to30

distrib ute” a ph onorecord of the call to any “ group of persons for purposes of further distribution, public pe rformance, or public display

. ” Swatch is unquestionably correct th at the earnings call is unpublished under the definition of “publication” set forth in § 101. But that technical
definition does not control our analysis of this aspe ct of the second fair use factor

. While we will consider the statutory definition, we also will not blind ourselves to the fact that Swatch Group invited over three hundred investment analysts from around the globe to the earnings call, out of which over a hundred actually
attended . Th us, even though the sound recording remain s statutorily
unpu blished, it is clear that Swatch was not deprived of the ability to “ control th e first public appearance of [its] expression ,” including “when, where, and in what form” it appeared. Harper & Row , 471 U.S. at 564.
Swatch insists that because the definitions in § 101 by their terms apply for all purposes under the Copyright Act “ [ e ] xcept as otherwise provided in this title,” 17 U.S.C. § 101, the statutory definition of “publication” must control. Not

so. While in general, “ [s] tatutory definitions control the meaning of statutory words ,” Burgess v. United States , 553 U.S. 124, 129 (2008) (quoting Lawson v.31

Suwanee Fruit & S.S. Co. , 336 U.S. 198, 201 (1949)) , in this case , no variant of the word “publish” appears in the text o f the second fair use factor in § 107

. W hether or not a work was published thus enters into our analysis of this factor as a judicial gloss on “the nature of the copyrighted work.” That gloss , of course, is firmly grounded in fair use’s common law o rigins and the legislative history of the 1976 Copyright Act. See Harper & Row , 471 U.S. at 552

– 54

. To the extent the text of § 107 mentions publication , it is only in a closing proviso cautioning that “[t]he fact that a work is unpublished shall not itse lf bar a finding of fair use if such finding is made upon consideration of all the above
factors.” Congress added this proviso to § 107 in 1992, see Pub. L. No. 102

- 492, 106 Stat. 3145 (1992) , to clarify, in response to certain decisions of this Court, tha t there is no “ per se rule barring any fair use of unpublished works.” H.R. Rep. No.
102

- 836, at 4, 9 (1992) (discussing New Era Publicatio ns Internationa l, ApS v. Henry Holt & Co., Inc. , 873 F.2d 576 (2d Cir. 1989) , and Salinger v. Random House, Inc. , 811
F.2d 90 (2d Cir. 1987) )

. While this proviso indicates by clear implication that inquiry into a work’s publication status is relevant to fair use, it in no way limits our consideration of that issue to the statutory definition of “publication” in32

§ 101. To the contrary, the proviso directs that if we find a work to be “unpublished,” however that term is understood, our analysis of the four statutory factors, including “the nature of the copyrighted work,” cannot end
there.
L imit ing our co nsideration of a w ork’s publication status to t he statutory definition, moreover, would obscure the different purposes served by the statutory definition and the judicial gloss on “the nature of the copyrighted
work” in the context of fair use

. The statutory concept of “pub lication” ser ves numerous purposes, such as triggering the requirement to deposit a copy with the Library of Congress, see 17 U.S.C. § 407, measuring the copyright term for certain categories of works, see id. § 302(c)

– (e), setting the circumstances under which works by foreign authors are protected, see id. § 104(b), and determining the legal effect of registration, see id. §§ 410(c), 412. See also 1 Nimmer on Copyright § 4.01 (explaining the significance of publication). Publicati on as a judicial gloss on “ the nature of the copyrighted work,” by contrast, aims to take account of “the author’s right to control the first public appearance of his expression,” Harper & Row , 471 U.S. at 564, which in turn forms part of our33

“ open - ended a nd context

- sensitive inquiry” into whether allowing the use in question would serve the goals of copyright, Blanch , 467 F.3d at 251.
This is not the first time that we have found that the second statutory factor favors fair use even though the work in que stion was technically unpublished under the statutory definition, s ee Diamond v. Am

- Law Pub. Corp. , 745 F.2d 142,
144 , 148 (2d Cir. 1984) , and courts in fact commonly look past the statutory
d efinition when considering this issue, s ee , e.g. , Rotbart v. J.R. O'Dwyer Co., Inc. , No. 94 Civ . 2091 (JSM), 1995 WL 46625 , at *4 (S.D.N.Y. Feb. 7, 1995) (finding that an unfixed, undisseminated talk, delivered publicly, had been “ de facto published” for purposes of fair use); see also 4 Nimmer on Copyrig ht § 13.05 [A][2][b][ii] ( “I f the author does not seek confidentiality, fair use is not necessarily precluded even as to an unpublished work

. ”). 4 We accordingly agree
with the district court that although the sound recording is statutorily unpublished, because Swatch Group publicly disseminated the spoken

4 Indeed, in discussing the relevance of publication to fair use in Harper & Row , the Supreme Court indicated t hat “even substantial quotations might qualify as fair use in a review of a published work or a news account of a speech that had been delivered to the public or disseminated to the press.” 471 U.S. at 564. Like the conference call at issue here, a publicl y delivered speech would not, by the mere fact of its public delivery, be

“ publi[ shed ] ” under § 101

.34

performance e mbodied in the recording before Bloomberg’s use, the publication
status of the work favors fair use. Swatch does not challenge the district court’s determination that Swatch’s copyright in the ea rnings call is “at best . . . ‘thin,’” Swatch II , 861 F. Supp. 2d at 341, nor could it. It is well established that “ the scope of fair use is greater with respect to factual than non

- factual works.” New Era Publ’ns , 904 F.2d at 157. Moreover, [e ]ven within the field of fact works, there are gradations as to the relative proportion of fact and fancy. One may move from sparsely embellished maps and directories to elegantly written biography. The extent to which one must permit expressive language to be copied , in order to assure dissemination of the underlying facts, will thus vary from case to case. Harper & Row , 471 U.S. at 563 (quoting Robert A. Gorman, Fa ct or Fancy? The Implications for Copyright , 29 J. Copyright Soc’y 560, 561 (1982) ). There can be no doubt as to the manifestly factual character of the earnings
call in this case. The entire copyrighted portion of the call consists of Swatch Group executives explaining the company’s financial performance and outlook to a group of investme nt analysts. And while we assume without deciding in this appeal that the call contained sufficient original expression

— in the form of the35

executives’ tone, cadence, accents, and particular choice of words

— to be copyrightable, the purpose of the call was n ot in any sense to showcase those forms of expression. Rather, the call’s sole purpose was to convey financial information about the company to investors and analysts

. 5 The through

- and

- through factual nature of the e arnings call places it at the
very edge of copyright’s pr otective purposes. In light of that fact , as well as Swatch Group’s prior dissemination of its executives’ copyrighted expression, we find that the second statutory factor strongly favors fair use.
C. Amount and Substantiality of the Portion Used
We turn now to “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3). This factor asks

5 Even the portions of the ca ll Swatch quotes as demonstrating the originality of the e xecutives’ statements are overwhelmingly factual in nature. Swatch points to the following passage, for example: So we’re not looking desperately for someone else, but I can tell you that there are many companies out there who would like to benefit from t he products, the [] know how, the management capabilities of Swatch Group. And you should ask the other companies out there, even big players, if they would not think that

— being part of T he Swatch Group, they will do much better. Look at the results and ma rgins and what they are doi ng, look at the regional trends, I think you would find many of them. Appellant’s Br. 9 (quoting J.A. 153 at 37:25

– 38: 43).36

whether “the quantity and value of the materials used are reasonable in relation to the purpose of the copying.” Campbell , 510 U.S. at 586 (internal citations and quotation marks omitted). In general, “ the more of a copyrighted work that is taken, the le ss likely the use is to be fair.” Infinity Broad. Corp. v. Kirkwood , 150 F.3d 104, 109 (2d Cir. 1998) . It is undis puted here that Bloomberg used the entire work. The district court acknowledged that “this generally weighs against fair use,” but found that the public interest in the information contained in the recording “is better served by the dissemination of that i nformation in its entirety, including the incidents of oral speech that do not translate onto the page but color the purely factual content.” Swatch II , 861 F. Supp. 2d at 342. Swatch argues that the district court improperly resolved this fac tor in Bloomberg’s favor because, as it also argued with respect to the first fair use factor, there are genuine disputes of material fact regarding wheth er Bloomberg subscribers glean information about earnings calls by list ening to audio recordings or in stead by reading a written transcript or article. We are unpersuaded. As an initial matter , we do not understand the
district court to have affirmatively weighed the third statutory fair use factor in37

Bloomberg’s favor. Such a hol ding would have been novel, as “[n] either our court nor any of our sister circuits has ever ruled that the copying of an entire
work favors fair use .” Bill Graham Archives , 448 F.3d at 613. Rather, we believe that
the district court found this factor neutr al, refusing to weigh it in Swatch’s favor despite Bloomberg’s use of the entire recording because of the public interest in
the informa tion embodied in the recording. That holding is entirely consistent with our case law. As we have recognized, a number o f courts “ have concluded that such copying does not necessarily weigh against fair use because copying the entirety of a work is sometimes necessary to make a fair use.” Id. (citing cases); s ee also Sony Corp. of Am. v. Universal City Studios, Inc. , 464 U. S. 417, 449

– 55 (1984) (finding copying of an entire work to be fair use)

. For the reasons already explained in our discussion of the first fair use factor, w e agree with the district court that Bloomberg’s use of the entire recording was reasonable in light of its purpose of disseminating important
financial information to American invest ors and analysts. The recording has independent informational value over and above the value of a written transcript or article, regardless of how many B loomberg subscribers took advantage of that38

value in this instance. Like the district court, we accordingly weigh this factor in neither party’s favor.
D. Effect upon the Market for or Value of the Original The final fair use factor considers “the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107(4). This factor

“ requires courts to consider not only the extent of market harm caused by the particular actions of t he alleged infringer, but also whether unrestri cted and widespread conduct of the sor t engaged in by the defendant would result in a substantially adverse impact on the potential market for the original .” Campbell , 510 U.S. at 590 (quotation marks and alterations omitte d). We have d escribed this
factor as “requir [ing] a balancing of ‘ the benefit the public will derive if the use is permitted and the personal gain the copyright owner will receive if the use is
denied

. ’ ” Bill Graham Archives , 448 F.3d at 613 (quoting MCA, Inc. v. Wilson , 677 F.2d 180, 183 (2d Cir. 1981) )

. The district court weighed this factor in favor of fair use, noting that “ the
relevant market effect is that which stems from [Bloomberg] 's use of the original expression of Swatch Group's senior officers, not that wh ich stems from39

[Bloomberg] 's work as a whole .” Swatch II , 861 F. Supp. 2d at 342. The district court found “[n]othing in the record [that] suggests any possible marke t effect stemming from [Bloomberg] ’s use of such a limited portion of the recording.” Id. The district court further found that any conceivable effect was ou tweighed by the public benefit of providing the information contained in the call to American investors and analysts. Id. Swatch argues that this analysis was erroneous because the d istri ct court again assumed that affording American investors and analysts access to the recording, as opposed to a written transcript or article, served the public interest. As we have already explained, we see nothing mistaken in that finding.
Swatch also co ntends that it was improperly denied the opportunity to take discovery i nto the existence of a market for audio recordings of earnings calls conducted by foreign companies that, like Swatch Group , are exempt from Regulation FD. Swatch admitted in its answe r to Bloomberg’s counterclaims that it “did not seek to profit from the publication of the February 8, 2011 Earnings
Call in audio or written format.” J.A. 294. Any di scovery thus would concern a40

potential market , as yet untapped by Swatch, for recordings of exempt earnings
calls.
While the loss of a potential yet untapped market can be cognizable under
th e fourth fair use factor, the potential market here is defined so narrow ly tha t it begins to partake of circular reasoning . As Professor Nimm er has observed, “it is a given in every fair use case that plaintiff suffers a loss of a potential market if that potential is defined as the theoretical market for licensing the very use at bar.” 4 Nimmer on Copyright § 13.05[A][4]. To guard a gainst this “vice of circular reasoning ,” our case law limits our consideration to a use’s “ impact on potential licensing revenues for traditional, reasonable, or likely to be developed
markets.” Am. Geophysical Union , 60 F.3d at 930

– 31 . T he hypothesized market for

a udio recordings of earnings calls convened by foreign companies that are exempt from Regulation FD cannot meet this standard. Moreover, to the extent that a financial news or research organization might be willing to pay to obtain such recordings, we must bear in mind that while “[t]he immediate effect of our copyright law is to secure a fair return for an

‘ author’s ’ creative labor,” the “ultimate aim is, by this incentive, to stimulate41

creativity for the general public good.” Fogerty v. Fantasy, Inc. , 510 U.S. 517,
526

– 27 (1994) (quoting Twentieth Century Music Corp. v. Aiken , 422 U.S. 151, 15 6 (1975) ). Here, the possibility of receiving licensing royaltie s played no role in stimulating the creation of the earnings call

. Indeed, Swatch affirmat ively a rgues that it does not know whether the re is a potential market for this kind of recording, and cannot know without obtaining discovery from Bloomberg . T he context of the earnings call , moreover, makes perfectly plain that its purpose was
to enable Swatch Group executives to disseminate financial information about
the company in a way that the y believed would be advantageous. It is that calculation of advantageousness, and not the possibility of receiving royalties,
tha t induces Swatch Group and other simil a rly situated companies to h old earnings calls

. Put differently, the “value” of the copyrighted expression for Swatch Group in this case lay not in its capacity to generate licensing royalties, but rather in its capacity to convey important information ab out the company to interested investment analysts. By making the recording available to analysts who did not or could not participate in the call initially, Bloomberg simply widened the42

audience of the call, which is consistent with Swatch Group’s initial purpose. Cf. Sony , 464 U.S. at 421 (noting t hat the fair use known as “time shifting”

— recording a television program in order to view it in its entirety at a later time

— “enlarges
the television vie wing audience” and therefore would no t impair the value of the copyright to the plaintiffs). At most, Bloomberg’s use had the effect of depriving Swatch Group of the ability to know and control precisely who heard the call. But

w hatever cognizable interest Swatch Group has in maintain ing that ability , it is far outweighed by the public interest in the dissemination of important financial information. As we recently observed in a related context, “ a [f] irm's ability to
make news
— by issuing a [report] that is likely to affect the market price of a security

— does not give rise to a right for it to control who breaks that news and
how .” Barclays Capital Inc. v. Theflyonthewall.com, Inc. , 650 F.3d 876, 907 (2d Cir. 2011)

. We accordingly agree with the district court that, balancing the public
benefi ts of th e use against the potential private royalties lost , the fourth statutory factor weighs in favor of fair use.43

E. Balance of Factors Balancing the four statutory factors together, we conclude that “ the copyright law’s goal of promoting the Progress of Science and useful Arts would be better served by allowing [Bloomberg’s] use than by pr eventing it.” Bill
Graham Arch ives , 448 F.3d at 608 (quoting Castle Rock , 150 F.3d at 141)

. Al though Bloomberg obtained the recording without authorization and put it to commercial use without transforming it , Bloomberg’ s use served the important public purpose, also reflected in Regulation FD, of ensuring the wide dissemination of important financial information. Moreover, although the recording remains technica lly unpublished under § 101, Swatch Group controlled the first dissemination of its executives’ expression to the public. In addition, Swatch’s copyright is exceedingly thin, as the recording is thoroughly factual in
nature. I ndeed, the whole purpose of th e conference call was to convey financial information about Swatch Group to analysts and investors around the world. And while Bloomberg used the recording in its entirety, doing s o was reasonably
necessary in light of Bloomberg’s purpose. Finally, we are confident that this type of use will neither significantly impair the value of earnings calls to foreign44

companies that convene and record them, nor appreciably alter the incentives for the creation of original expression. In sum, Bloomberg’s use is fair u se. II. Bloomberg’s Cross

- Appeal Having resolved Swatch’s main appeal on the ground of fai r use without reaching the issue of copyrightability, we must address Swatch’s motion to dismiss Bloomberg’s cross

- appeal. That motion is granted, for two reasons. First, i t is axiomatic that “ [i] n order to have standing to appeal, a party must be aggrieved by the judicial action from which it appeals .” Great Am. Audio Corp. , 938 F.2d at 19. Here, the May 18, 2012 judgment identified in Bloomberg’s notice of appeal a s the subjec t of the cross

- appeal provides simply: “[f]or the reasons stated in the Court’s Opinion and Order dated May 17, 2012, judgment is
here by entered in favor of [Bloomberg] .” Special App. 13. The May 17, 2 012 Opinion and Order, in turn , had explained that “since [Bloomberg] ’s use qualifies as fair use, [Bloomberg] has not infringed, and [Swatch] ’s Second Amended Complaint should be dismissed.” Swatch II , 861 F. Supp. 2d at 343. Bloomberg argues that it is aggrieved by the May 18, 2012 judgm ent because it see ks a decision not only as to whether its use was fair use, but also as45

to whether Swatch’s recording was validly copyrightable in the first place. To the
extent B loomberg contends that Swatch’s complaint should be dismissed on the ground of copyright invalidity in addition to or instead of the ground of fair use, Bloomberg “ is not urging that we alter the judgment in any way, but rather that we alter the reasons underlying it .” Allstate Ins. Co. v. A.A. McNamara & Sons, Inc. , 1 F.3d 133, 1 37 (2d Cir. 1993) . W hile Bloomberg “is entitled to urge that we affirm the district court’s decision on any basis submitted to that court and supported by the record ,” id. (quoting Great Am. Audio Corp. , 938 F.2d at 19), it is not aggrieved by the d istrict court’s dismissal of Swatch’s complaint on the ground of fair use, and therefore “ is not entitled to cross

- appeal, ” i d. Second, to the extent that Bloombe rg challenges the district court’s dismissal of its counterclaim seeking a declaration that S watch’s copyright is invalid, that ruling of the district court is not properly before us. Federal Rule of Appellate Procedure 3(c) (1)(B) provides that a notice of appeal “must

. . . designate the judgment, orde r, or part thereof being appealed .” This requ irement is “jurisdictional in nature.” Gonzales v. Thaler , 132 S. Ct. 641 , 652 (2012) (quoting Smith v. Barry , 502 U.S. 244, 248 (1992)). Bloomberg’s notice of cross - appeal, filed46

on June 28, 2012, designates only the district court’s May 18, 2012 judgment , which did not resolve Bloomberg’s counterclaim. As the May 17, 2012 Opinion
and Order incorporated into the judgment makes plain, the district court simply dismissed Swatch’s complaint on the ground of fair use, “assum[ing], without deciding, .

. . that [Swatch]’s copyright is valid.” Swatch II , 861 F. Supp. 2d at 338. It was not until August 27, 2012, that the district court issued an order dismissing Bloomberg’s counterclaims as moot. Bloomberg never filed any additional or supplemental notice of appeal designating that subsequent order as the subject of

a cross - appeal. While “we construe notices of appeal liberally, taking the parties’ intentions into account,” Shrader v. CSX Transp., Inc. , 70 F.3d 255, 256 (2d Cir. 1995) , we cannot reasonably read Bloomberg’s notice of cross - appeal to
conte mplate review of an order that did not issue until nearly two months
afterwards

. While Bloomberg may be aggrieved by the dismissal of its declaratory counterclaim, which arguably would have enlarged Bloomber g’s rights, we h ave no jurisdiction to review it in the absence of a proper

cross - appeal. See Int'l Ore & Fertilizer Corp. v. SGS Control Servs., Inc. , 38 F.3d 1279, 1286 (2d Cir. 1994)

.47

Bloomberg’s cross

- appeal accordingly is dismissed for lack of standi ng and lack of jurisdiction.
CONCLUSION For the foregoing reasons , Bloomberg’s cross

- appeal is DISMISSED , and the district court’s judgment is AFFIRMED

.