The Supreme Court, in Carpenter v. United States (Winans WSJ case), was divided on the convictions under the securities laws. Rather, they focused the discussion on the mail and wire fraud statutes. This is why the issue of Winans' duty of confidentiality to the WSJ was relevant. If we are going to analogize the sharesleuth.com model to that case, the obvious big distinction is that here there is no employee who is acting in violation of a duty. In fact, here, the principal is the one who is acting on the information, rather than the agent. I guess my question would be, if we were to compare sharesleuth.com to a reputed news source like the WSJ, would the owners of the WSJ be allowed to trade on the information obtained by its employees (assuming the information did not constiute any corporate inside info or any "hold for release" info)? I suppose this is where the securities laws would come into play.

So I guess that the way you are characterizing "non-public info" is not how I understand the securities laws to define it as. You are right that the non-public element in the WSJ and Business Week cases was "knowing the specific company about which a market-moving publication is going to issue a report or article," but I'm not sure that's how the securities laws look at it. Correct me if I'm wrong.

I remain unimpressed by this theory. "Tony" and his 10b-5 hypothesis was more convincing.

Rather than get all persnickety, though, let's reduce the problem. Is your next ISS-certified SLW posting suspect? Is my next here's-what-I'm-thinking blog post? If not, where is your bright line -- and how does Cuban overstep his bounds, legal or merely ethical, when Merril Lynch does not?

Answer this: is the information published in Business Week's Inside Wall Street column and the WSJ Heard on the Street column nonpublic? Because the SEC and the DOJ both said it was when they sued/prosecuted people for trading in advance of the publication of those columns. You can assume for purposes of this question that there was no "inside" info in those columns--just blurbs and analysis about companies that moved the market because it gave people new insight from a credible source.

If you agree that the BW/WSJ info is nonpublic, then how is SS.com any different? If you disagree, well then you need to take that up with the SEC/DOJ.

Insider trading in 8 words:

1) Non-public information

2) Used in breach of a duty

I sit at home and decide which stocks to buy based on my own analysis. I've create and used non-public information. But I haven't breached a duty to anyone because it's my information and I give myself permission to use it. Th next day I tell all my friends what a great stock pick I found and why. They think I'm brilliant and buy the stock. SS.com is the same thing. The content of SS.com is non-public information prior to its publication, but Cuban isn't breaching a duty to SS.com by using it. To the contrary, the whole purpose of SS.com is for Cuban to use the information, then tell the world how smart he (or his staff is) in finding a bad company that should be shorted.

If what Cuban is doing were illegal, Jim Cramer would be in jail since he's doing the same thing. He researches a company, buys the stock (now for his trust) and goes on TV and talks up the stock. I bet if someone tracked the stocks he talks about they see a bump the next day. But I don't think you'll see the SEC going after Cramer.

I am still looking for the bright line, either legal and ethical, over which you think Sharesleuth stepped. It seems to me that neither Mr. Burns's talking his book (or me mine) nor Merrill Lynch publishing analyst reports is insider trading. Cuban's Sharesleuth blog strikes me the same way.

As I understand it, SEC enforcement in the various BW and WSJ cases operated on a legal theory that does not apply here. Mr. Cramer is the object lesson here: his television show measurably moves markets of securities in which his foundation may invest. I am baffled that any investors are gullible enough to buy on Mr. Cramer's say-so, but taking advantage of their gullibility is not illegal, though it strikes me as tawdry.

While I would prefer a world without Mr. Cramer bellowing on the television, I cannot see the attraction of a regime in which publicizing investment analysis is illegal for market participants. It would make for more interesting and less-efficient markets, though. That might be fun.