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NEW YORK MERCANTILE EX. v. INTERCONTINENTALEXCHA.

Docket No. 05-5585-CV.

497 F.3d 109 (2007)

NEW YORK MERCANTILE EXCHANGE, INC., Plaintiff-Counter-Defendant-Appellant, v. INTERCONTINENTALEXCHANGE, INC., Defendant-Counter-Claimant-Appellee.

United States Court of Appeals, Second Circuit.

Decided: August 1, 2007.

Attorney(s) appearing for the Case

Herbert C. Ross, Jr., Olshan Grundman Frome Rosenzweig & Wolosky LLP, New York, NY, Martin I. Kaminsky, Edward T. McDermott, Pollack & Kaminsky, New York, NY; Shepard Goldfein, Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY, for Plaintiff-Counter-Defendant-Appellant.

Richard H. Klapper, Bradley P. Smith, Sullivan & Cromwell LLP, New York, NY; Stephen D. Susman, Shawn L. Raymond, Susman Godfrey L.L.P., Houston, TX, for Defendant-Counter-Claimant-Appellee.

Nicole Gueron, Sarah S. Normand, Assistant United States Attorneys, of counsel, for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY, for Amicus Curiae United States of America in support of Defendant-Appellee IntercontinentalExchange, Inc.

Before: KATZMANN, WESLEY, and HALL, Circuit Judges.

Judge HALL, Circuit Judge, filed a separate opinion concurring in part.

KATZMANN, Circuit Judge.

This case calls upon us to decide whether the New York Mercantile Exchange, Inc. ("NYMEX") can enforce a copyright in the settlement prices it produces to value customers' open positions. We hold that even if these prices are created by NYMEX—a question we do not resolve— there has been no infringement because enforcing the copyright here would effectively...

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