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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.

Steve:
I might agree on policy grounds, but I feel like this sort of appropriation is way too commercial to fit within my concept of "fair use."
2.24.2009 5:15pm
Houston Lawyer:
Obviously, they have never heard of Matt Drudge.
2.24.2009 5:34pm
martinned (mail) (www):
No one for the Schumpeterian approach? That's disappointing...
2.24.2009 5:46pm
Bored Lawyer:

No-one should have a monopoly, even a brief one, in the facts that they have uncovered,


I do not believe that this accurately conveys the parameters of the tort of misappropriation. In general, unfair competition in NY (and elsewhere) is based on the notion of taking a free ride on someone else's labor.

Nothing is stopping anyone from hiring their own team of reporters to cover and report on "hot news." What is not allowed is to take an AP report of breaking news and re-report it on one's own site as hot news.

As for discussion, one could easily posit a "fair use" defense, similar to that in copyright, that looks to the purpose and transformative effect, if any, of the use. That would differentiate someone who is simply peddling hot news for a fee from someone who wants to discuss the political/legal ramifications of the news.
2.24.2009 5:47pm
krs:
2 out of 2 bloggers don't like the "hot news misappropriation" tort. Shocking.

That said, this is an interesting issue and based on what I've studied about it, I tend to agree with you.
2.24.2009 6:09pm
Dilan Esper (mail) (www):
I do not believe that this accurately conveys the parameters of the tort of misappropriation. In general, unfair competition in NY (and elsewhere) is based on the notion of taking a free ride on someone else's labor.

The intellectual property laws get into trouble whenever they stop talking about consumer protection or promoting the progress of science and the arts and start talking about the free rider problem. (See Feist v. Rural Telephone Service (phone books not copyrightable despite the cost and effort of compiling them); but see Trademark Dilution Act (making non-confusing uses of trademarks actionable); San Francisco Arts &Athletics (permitting ban on use of word "Olympic" in commercial context even when no consumers are confused based on value that has been built up in the mark).
2.24.2009 7:39pm
BBA:
At the time the hot news doctrine was developed, copyright protection in the U.S. required registration and deposit with the Library of Congress; a work published without going through the process was public domain. Had the US joined the Berne Convention a few decades earlier there probably wouldn't be this "news reporting right".
2.24.2009 9:29pm
INSvAP (mail):
Maybe I can be enlightened. How is "hot news" misappropriation substantially different from the misappropriation defined by INS v. AP?
2.25.2009 12:15am
Harry Eagar (mail):
'Sfunny how Hayekians forget all about property rights when someone is stealing work product from newspapers.
2.25.2009 12:54am

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