Saving journalism with copyright reform and the doctrine of hot news

The trouble -with Feist as the high noon moment for the "sweat of the brow" theory is that there just wasn't much sweat to speak of. The content at issue was virtually handed to the phone company by subscribers; there was no expensive fact gathering to be done or newsroom to fund. The company was a monopoly seeking to use its control over white page listings to create a second monopoly over yellow page advertising. The published information was purely "garden-variety" and "devoid of even the slightest trace of creativity," as the Court said.3 In INS, the AP alleged that INS had copied AP news from early editions of newspapers and then either sold the stories wholesale or rewrote them for profit. The AP argued that INS's conduct "violate [d] the [AP] 's property right in the news and constitute [d] unfair competition in the business."8 The Court rejected the notion that the AP had any property right in the news, which it regarded as "common property," but held that the unfair competition claim gave rise to a quasi-property right that existed between two competitors and could be protected.9 The holding confirmed that a common law cause of action for hot news misappropriation existed to prevent one competitor from stealing another's original content, rewriting it, and "reaping the fruits of [the originator's] efforts and expenditure."11 The holding was subject to a vigorous dissent by Justice Brandeis, who declined to "establish a new rule of law in the effort to redress a newly disclosed wrong" even though "the propriety of some remedy appealed] to be clear."12 Such a decision was for the legislature, he argued, not the courts. The cause of action thus remains alive and well in the five states where it is recognized. As recently as January 2008, the Associated Press filed suit against aggregator All Headline News alleging hot news misappropriation after AHN allegedly copied and rewrote AP content. The New York federal court refused to dismiss AP's hot news cause of action because it "remain[ed] viable under New York law, and the Second Circuit has unambiguously held that it is not preempted by federal law."19 The parties settled shortly thereafter, with AHN agreeing that it "would not make competitive use of content or expression from AP stories" and acknowledging as part of the settlement that "the tort of 'hot news misappropriation' has been upheld by other courts and was ruled applicable in this case."20