Court Upholds AP "Quasi-Property" Rights On Hot News

I Don't Believe in Imaginary Property writes "A federal court ruled that the AP can sue competitors for 'quasi-property' rights on hot news, as well as for copyright infringement and several other claims. The so-called 'hot news' doctrine was created by a judge 90 years ago in another case, where the AP sued a competitor for copying wartime reporting and bribing its employees to send them a copy of unreleased news. The courts' solution was to make hot news a form of 'quasi-property' distinct from copyright, in part because facts cannot be copyrighted. But now the AP is making use of the precedent again, going after AHN which competes with the AP, alleging that they're somehow copying the AP's news. The AP has been rather busy with lawsuits lately, so even though the AP has a story about their own lawsuit, we won't link to it."

Comments

Re:I call it plagiarism

[Joe U]

At what point does this end though? You can't own a fact.

It's currently raining in NY (c) AP 2009?

!plagiarism

[zobier]

Covering the same story is not necessarily plagiarism, copying it verbatim would come directly under copyright but AFAICT that's not the case at issue.

Anyway:

The AP has been rather busy with lawsuits lately, so even though the AP has a story about their own lawsuit, we won't link to it.

It made for a good joke but the AP doesn't seem to be covering this story (I was going to post the link but I can't find one).

Some more analysis links

[Red Flayer]

As usual, I find that the decisions and writing of Judge Learned Hand to be some of the most insightful. From his extensive writings on free speech (which O.W. Holmes borrowed heavily from), to the present matter:

from Harvad Law (emphasis mine):

The Second Circuit was very hostile to INS for many years. Justice Learned Hand agreed with Justices Holmes and Brandeis and was quite overt in getting his colleagues to circumvent INS. An example of this deliberate resistance was Cheney Bros. v. Doris Silk Corp., 35 F.2d 279 (2nd Circ. 1929), involving two competing silk manufacturers. Plaintiff Cheney requested an injunction barring Doris from copying patterns used in dress design during the eight to nine month fashion season. Cheney relied on INS, saying its situation was analogous because the considerable expense involved in designing the patterns couldn't be recouped when the defendant copied the patterns with no similar expenditure and sold them for lower prices. Affirming the District Court's denial of an injunction, Justice Hand noted that because of the short season life of the patterns, design patent protection was impractical and they would likely lack the requisite originality to qualify. Nor did the patterns qualify for copyright protection because they flunked the conceptual separability test. Justice Hand said that, although it seemed unfair to not provide a remedy to Cheney, it was not up to the judicial system to extend a patent- or copyright-like monopoly in the absence of legislation authorizing it.

But this doesn't really matter anyway, since if you read on in the link I provided, you'll see that federal common law was abolished, so what matters is the specific state law. New York common law establishes strict criteria for the application of the misappropriation doctrine to "hot news" (see National Basketball Ass'n v. Sports Team Analysis & Tracking Systems, Inc. [warning: site is ugly as sin] for how a recent plaintiff's claim was found to be lacking)... and this seems to meet all of it. It made me chuckle, however, that in that link one of the biggest supporters of the defendant in that case was the AP.

At any rate, I think we need to have either sweeping federal law specifically creating this property, or we need to have no right to "hot news" as quasi-property. The problem with the latter is then there is no incentive to do fact reporting at all, since it would be impossible to recoup the costs of it. The idealist in me says "Boo to treating information as property" but the realist in me says "Yay to having paid reporters".

Meanwhile, the cynic in me says "It doesn't matter, we'll only see the news they want us to see", the paranoid in me says "We'll only see the news THEY want us to see", and the dadaist in me says "News? Art.".

protecting information: here's the deal

[drDugan]

We have IP for a reason: it helps make social structures work better. As a society, we make a little deal, and that deal is a different in each of the 3 broad categories of IP protection: copyright & trademarks, patents, and trade secrets.

In the copyright area, the deal works like this: the Content Creator gets a limited time right to exclusively control profits, distribution, performance, derivatives and use of the work they create as a proxy for the "property right" they would normally get to claim if they had created a physical thing. In return for this exclusive control, the Content Creator gets both benefits, but also pays a downside. The benefit is they get to profit and control the results of their efforts. The downside is that after that limited time is over, the information always gets released to the society at large. In the long run, society benefits from this deal in two ways: it promotes the creation of works based on information: digital media, software, literature, music, movies, etc. ...in today's world - most everything relating to media, computers, and electronic art. The second, important benefit is that society gets all the information after the limited time is over. It all becomes public domain.

Copyright is good, and we need it. Many have argued and manipulated the system to change the amount of time - but that is another story. Many have argued about how much of what one creates can be controlled, and how - and we have fair use cases that cover exactly that.

So we already have the deal. The deal works (some might argue poorly). I don't see a valid need for another, different deal.

Just because AP runs a large business and spends money doesn't mean they (or anyone) can cut a new deal. In this case, the whole idea of "hot news" is about controlling very specific, small pieces of information: scores, facts, headlines. In my opinion after a very brief read: the balance between what is good of society and what is good for the Content Creator is not met.

Re:protecting information: here's the deal

[Jeff DeMaagd]

Sounds strawman-ish. "work better" doesn't have to mean mean things didn't work at all before. Not only that, the landscapes were very different. There wasn't a mass market for prerecorded/preprinted media because it was too expensive. I don't think as big of a proportion of the society worked at creating works of art, books, music, movies either. Before a couple centuries ago, most people's employment was in food production, now, food production employs less than 5% of a modern developed society.

Another sign of the failing news industry

[DustyShadow]

When all else fails, sue everyone!

Re:What the hell is "AP"?

[pipatron]

Ok, let's check the wikipedia article:

The Associated Press (AP) is an American news agency. The AP is a cooperative owned by its contributing newspapers, radio and television stations in the United States

Perhaps this is the reason that I had never heard about "AP"? It's not being used outside your country, but I suppose USA means "The World". I guess you'll wake up sooner or later.