Case 1:22-cv-01860-KPF Document 36 Filed 04/20/22 Page 1 of 3
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`VIA ELECTRONIC FILING
`
`The Honorable Katherine Polk Failla
`United States District Court for the Southern District of New York
`Thurgood Marshall Courthouse
`40 Foley Square, Room 618
`New York, NY 10007
`
`Re: Dinosaur Financial Investment Group LLC et al. v. CUSIP Global Services, et
`al., Case No. 22 Civ 1860-KPF
`
`
`Dear Judge Failla:
`
`Plaintiffs Dinosaur Financial Group LLC and Swiss Life Investment Management
`Holding AG request a pre-motion conference on their motion for partial summary
`judgment under Federal Rule of Civil Procedure 56(a) and this Court’s Individual
`Rule of Practice in Civil Cases 4(a). Plaintiffs seek a declaration as a matter of law
`that the nine-digit numbers that are CUSIP identifiers are not copyrightable and
`American Bankers Association (“ABA”) copyright # TX 6-146-660 grants no copyright
`in CUSIP identifiers themselves. The motion is not on consent of all parties.
`
`The questions presented on the proposed motion are dispositive of the liability issues
`in this case. Without the protection of a copyright, Defendants have no lawful means
`to stop financial institutions from using CUSIP identifiers. If Defendants cannot
`lawfully preclude a financial institution from using CUSIP identifiers, they cannot
`require financial institutions to enter a license and pay a fee to use the CUSIP
`identifiers. To the extent that they have entered into agreements with such
`requirements, they have violated the antitrust laws by restraining trade in the use
`of CUSIP identifiers.
`
`
`The undisputed facts material to the motion are: 1) the ABA’s copyright; 2) the
`structure
`of
`the
`nine-digit
`numbers
`that
`are CUSIP
`identifiers
`(https://www.cusip.com/identifiers.html#/CUSIP); and 3) the use of a CUSIP
`identifier for financial instruments by financial institutions in the normal course of
`their businesses (id.). The ABA’s copyright sets forth a claim in a “compilation of
`database material,” which consists of “up to 60 different data elements relating to
`over 26 million financial instruments” (https://www.cusip.com/index.html). A single
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`Case 1:22-cv-01860-KPF Document 36 Filed 04/20/22 Page 2 of 3
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`one of those sixty data elements is the CUSIP identifier at issue in this litigation (id.).
`All CUSIP identifiers in existence today have been generated by a system of 50-year-
`old rules requiring the first six numbers to identify the unique name of the issuer,
`the next two numbers to identify the type of instrument (equity or debt), and the last
`number to represent a mathematical formula checking the accuracy of the previous
`eight characters.
`
`The law is as clear as the facts. The certificate claims a copyright in a compilation of
`data. Section 101 of the Copyright Act (Title 17 of the United States Code) defines a
`“compilation” as “a work formed by the collection and assembling of preexisting
`materials or of data that are selected, coordinated, or arranged in such a way that
`the resulting work as a whole constitutes an original work of authorship.” (Emphasis
`added.) Section 103 of that Act expressly states that a copyright in a compilation
`“extends only to the material contributed by the author of such work, as distinguished
`from the preexisting material employed in the work, and does not imply any exclusive
`right in the preexisting material.” As the Supreme Court ruled in Feist Publications,
`Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991):
`
` A
`
` factual compilation is eligible for copyright if it features an original
`selection or arrangement of facts, but the copyright is limited to the
`particular selection or arrangement. In no event may copyright extend
`to the facts themselves.
`
`
`Id. at 350-51.
`
`Thus, the copyright claimed via certificate # TX 6-146-660 protects only the
`compilation as a whole, in no way extending to the individual data items (the CUSIP
`identifiers) in the compilation.
`
`Moreover, there is nothing original or creative in the CUSIP identifiers that would
`justify copyright protection. In a case markedly similar to this one, Justice Alito—
`then a judge on the Third Circuit Court of Appeals—held in an 11-2 en banc decision
`that numbers generated by a numbering system that required a rigid, unchanging
`structure were not original or creative and were therefore not copyrightable. See
`Southco, Inc. v. Kanebridge Corp., 390 F.3d 276 (3d Cir. 2004) (en banc).
`
`The same is true here. The CUSIP identifiers are generated using a convention
`established more than 50 years ago that strictly determines the format of the CUSIP
`identifier and each character within it. The CUSIP identifiers are not copyrightable
`and have not been copyrighted.
`
`Finally, the Copyright Office would not have issued the registration to the ABA had
`it claimed that the CUSIP identifiers standing alone are subject to copyright
`protection. This is because the Copyright Office procedures provide that “individual
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`Case 1:22-cv-01860-KPF Document 36 Filed 04/20/22 Page 3 of 3
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`numbers, letters, sounds, and short phrases consisting of such elements are not
`copyrightable, because they do not contain sufficient creative authorship.”
`Compendium of the U.S. Copyright Office Practices, Ch. 300 at 29 (1/28/2021 3d ed.).
`
`Accordingly, the court should schedule a pre-motion conference to permit Plaintiffs
`to proceed with their motion for partial summary judgment.
`
`Respectfully submitted,
`
`
`
`
`Leiv Blad
`Jeffrey Blumenfeld
`COMPETITION LAW PARTNERS PLLC
`1101 Pennsylvania Avenue, NW
`Washington, DC 20004
`Telephone: (202) 742-4300
`
`Robert N. Kaplan
`Gregory K. Arenson
`KAPLAN FOX & KILSHEIMER LLP
`850 Third Ave.
`New York, NY 10022
`Telephone: (212) 687-1980
`
`David Nimmer
`Joseph Mantegani
`IRELL & MANELLA LLP
`1800 Avenue of the Stars
`Suite 900
`Los Angeles, CA 90067
`Telephone: (310) 277-1010
`
`cc: Eric J. Stock, Gibson Dunn
`
`David Kiernan, Jones Day
`
`Seth Greenstein, Constantine Cannon
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