“Hot News”: The Enduring Myth of Property in News

Shyamkrishna Balganesh

Columbia Law Review, Vol. 111, No. 3, pp. 419-497, 2011

This article analyzes the increased use of the “hot news” doctrine by newspapers attempting to protect breaking stories.

Currently, courts have been interpreting the “hot news” doctrine in a way that gives rights to news companies similar to the intellectual property rights given to inventors. However, this is in direct contrast to the expressed policy goals of the Supreme Court members who originally created the “hot news” doctrine in the first place; thus, future courts and policy makers addressing this issue should be leery of continuing this trend.

• Over the last twenty years the newspaper profitability has decreased dramatically and the industry has repeatedly blamed the Internet. Newspaper companies claim that bloggers, news aggregators, and other online entities steal the substance from their news stories and then distribute it to a global audience, via the Internet, for free.
   
• In response to declining profits, the news industry looked to increased intellectual property protection for an answer. The source for this increased protection was a long dormant doctrine of law called “hot news” misappropriation.
  • The doctrine of “hot news” arose in 1918 when the Supreme Court issued its ruling in International News Service v. Associated Press. The parties in the case had carefully constructed the case in an attempt to force the court to create a property right in news stories.
     
  • Instead of creating a property right in news, the Supreme Court held that under the doctrine of misappropriation news companies who expended substantial resources in unearthing news stories could recover, or sue, others who copied their work, but only if the commercial value of the work came from its time sensitive nature.
     
  • The court created this middle ground out of a fear that creating a property right in the news would be counter to the public interest and result in limited distribution of factual information, which cannot be protected under current copyright law.
     
• In 2009, the Associated Press began tracking all of its published stories, and then searching other online news sources in order to determine who was free riding and republishing their news stories online. When the Associated Press found online entities copying their work, they sued under the “hot news” doctrine created back in 1918.
   
• Other news gathering organizations have followed suit and also brought “hot news” claims to the courts in an attempt to have a protected interest in the news. However, these claims run directly counter to the expressed policy intent of the Supreme Court case that created the very doctrine that the news organizations are using.
   
• Because the original goal of the “hot news” doctrine was to prevent the creation of an official property right in the news while still deterring free riding, courts today should be extremely hesitant of applying “hot news” in a way that gives news providers substantive property rights in their stories.