Whatever works, works. If it’s not hot news, it’s copyrighted opinion.

Whatever works, works. It’s a message I always try to pound into my students. No matter how brilliant you think one argument is, the judge’s mind might be captured by another. Which makes the editing out of an argument so weak it detracts from the strongest arguments so tricky. I remember one time winning a case on an argument my colleagues and I had concluded was too silly to bother making. But in that situation at least we knew one of our client’s co-parties in the case had made it so we knew the judge would see it. Sure enough, it was the argument that one us the case. The client was happy. And so were we.

As the Copyright Litigation Blog reports, just such a thing happened in Agora Financial, LLC v. Samler (D. Md. June 17, 2010) (pdf). The plaintiff, a financial newsletter, sued a website that had had lifted and republished the plaintiff’s investment recommendations. The plaintiff sued, claiming that the defendants actions were “Hot news misappropriation” and violated Section 43(a) of the Lanham Act.

“Hot news” is a relatively recent coinage that, in the words of Thomas Shevory, “refers to written material, often ‘facts,’ that have value for a short duration, and which will soon move into the ‘public realm’ losing their value completely.” Thus, news organizations have argued that “hot news” is entitled to protection. One problem with the argument is that facts alone cannot be copyrighted. As Shevory writes, “[g]iven the short time-frames at stake, questions of how to determine value, and underlying doubts about whether it should be protected at all, analysis of hot news can quickly become an extremely complicated undertaking.”

So what did the court in Agora Financial do? It ruled for the plaintiff-financial newsletter and held that the defendants’ appropriation was unlawful, but it avoided the difficult question altogether. It held instead that the appropriated material constituted “opinion” — not “fact” — and thus are entitled to copyright protection. The appropriation, therefore, constituted copyright infringement.

Not only does the case illustrate that you can win — and welcome the win — on different grounds than you argue, but that courts tend to find whatever way they can to avoid controversial reasons to find the way they want to find.