Price Lists Aren’t Copyrightable–Rapaport v. Nivoda

May 7, 2025 · by · in Copyright, E-Commerce

This case involves diamond prices. The plaintiff Rapaport publishes a weekly subscription-only price list of diamonds based on various attributes. This publication serves as an industry benchmark. The defendant Nivoda is an online retailer[FN] that displays how its prices are discounted compared to the Rapaport prices (see screenshot). In theory, someone could collect the Rapaport prices by scraping Nivoda’s discounts from Nivoda’s site and reverse-calculating the Rapaport prices, though that seems like a cumbersome and incomplete approach. Nevertheless, the publisher Rapaport sued the retailer Nivoda for displaying the prices.

[FN: Per Nivoda’s FAQ, “Nivoda operates exclusively as a B2B (business-to-business) marketplace and does not engage in sales to the general public.”]

This lawsuits raises one of the venerable but surprisingly vexing copyright law questions: when is a price copyrightable? That might sound like a stupid question because “facts” aren’t copyrightable and a price seems like it should be characterized as a “fact.” And yet…the copyright law jurisprudence is littered with cases saying or implying that individual prices could be copyrightable (e.g., the abysmal CDN v. Kapes opinion), as wacky as that may seem. These cases have imperiled various important social activities, such as price comparisons.

This court, in contrast, treats the copyrightability of prices as the easy question I always thought it should be:

The only way to express the price of a particular diamond or type of diamond is with the specific number corresponding to that price. [Cite to Banxcorp v. Costco.] Accordingly, the merger doctrine applies to the List and Rapaport [sic] cannot be liable for copyright infringement. [Note: the court surely meant Nivoda, not Rapaport. Oops.]

💥 It really is that simple. Nevertheless, Rapaport has already appealed this ruling to the Second Circuit.

I’m not likely to be in the market for diamonds for the foreseeable future, but I imagine I would probably prioritize lab-grown diamonds over mined diamonds if I were.

Case Citation: Rapaport USA, Inc. v. Nivoda USA, LLC, 25-cv-171 (JSR) (S.D.N.Y. May 2, 2025). This lawsuit was filed in early January. Kudos to the judge for getting this case to a resolution in four months.