Much is written about how the Internet has changed the face of news reporting, information delivery and traditional print newspapers. There is also much written about new technologies requiring or creating new legal theories particular to them. Sometimes, though, seemingly archaic concepts apply to the fast-paced, need-to-know-now world of the internet.
The Associated Press ("AP") is a world-wide news-gathering and reporting organization. AP works with a global network of reporters who write and file news stories with it. AP in turn edits these items and provides the content to subscribers. Among AP subscribers are traditional print newspapers as well as internet-based and mobile news outlets. Many subscribers ultimately place AP content on their websites. AP subscriptions carry various terms and conditions and every story provided under the subscriptions contains copyright notices identifying AP as author and owner of the copyright.
All Headline News ("AHN") is a company whose employees were paid to scour the web to find breaking news stories from around the world and prepare them for republication under the AHN name. This was done by either re-writing the stories or simply copying them in full. Often, AHN employees simply removed an original author's copyright claim from a story, paraphrased the story and republished it. Sometimes, AHN attributed content to the original author in its reworked stories, but often not. Many of AHN's stories were simply paraphrased AP items. AHN, like AP, would provide its news stories to subscribers who would then publish the items.
AP filed suit alleging, among other things, that a ninety-year-old little-utilized legal theory provided it with a cause of action against AHN for "misappropriation of hot news." This cause of action has its basis in a 1918 U.S. Supreme Court decision also involving AP and at a time when competition among newspapers and reporting organizations was both intensely fierce and fueled by new technology—the telephone and radio wire. In that case, William Randolph Hearst's International News Service ("INS") actually bribed AP reporters and newspapers that subscribed to the AP wire (when it was a wire) to provide AP's breaking news stories to INS before publishing them. Hearst's INS would then rewrite those stories as its own and send them off to its wire subscribers, thus "getting the scoop" on AP.
Copyright law does not necessarily apply to the news itself, since the underlying facts or events giving rise to a news-worthy item cannot be property rights in and of themselves. Only the expression or interpretation of news-worthy events can be protected. This would seem to leave "news" unprotectable. The Supreme Court, however, recognized there is a "quasi-property right" in the reporting of "hot news." Time and expense is involved in newsgathering and reporting and when those efforts yield items of immediate interest—breaking news—the party who put forth the work to develop the news and "break" a story should have the primary right to enjoy the results of same, including profiting from selling its story. INS's practice of seeking diversion of AP news and rewriting it for its own wire was an attempt to "reap what it has not sown." Thus, the Supreme Court held there is a cause of action against a party who misappropriates "hot news."
Though the elements and parameters of this claim were developed almost a century ago, it is little-used and not widely accepted in American jurisprudence. In fact, the only state that allows such a cause of action is New York, which is where AP brought its suit against AHN. AHN tried to dismiss AP's misappropriation of hot news claims, in part by arguing that Florida-, not New York law applied. Nevertheless, just a few weeks ago the U.S. District Court for the Southern District of New York found the ninety-year-old cause of action still available to AP based on the facts alleged in its complaint.
This is not a copyright doctrine, but rather a form of unfair competition. Still, the 1918 decision and cause of action it created was an application of legal concepts to a highly-competitive news industry growing with the use of new technologies. Sometimes, even the latest technologies can be governed by the "old" rules.
Vol. 53, June 2010