Patterico on the Hot News Doctrine

and The Associated Press.

I agree that the hot news misappropriation tort (described here, with a link to the opinion) should be interred, among other things on First Amendment grounds. To the extent the “hot news”-infringing publication also constitutes copyright infringement, copyright law is quite adequate. To the extent that the publication is not copyright infringement, then it must be either copying ideas and facts (rather than copyright-protected expression) or must be fair use — and both of those should be seen as constitutionally protected, because they’re outside the copyright exception to First Amendment protection.

Nor is this just a matter of First Amendment formalism (much as I like First Amendment formalism): No-one should have a monopoly, even a brief one, in the facts that they have uncovered, precisely because such a monopoly limits others’ ability to discuss them, evaluate them, recheck them, controvert them, and broadcast their importance. All Headline News (the entity involved in the case to which Patterico refers) might not be a particularly appealing defendant, and might in fact be guilty of copyright infringement. But the logic of the hot news misappropriation tort is hardly limited to them.