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The Doctrine Of Hot News and why it troubles me

June 21, 2010

I wrote yesterday about the doctrine of hot news, and how one day it could be used to stifle the sharing and posting of news as it happens, giving large media companies an artificial and short-term monopoly of the reporting said news.

Yes I did say that the tone of the article was a bit tongue and cheek and that I certainly hoped that I was not writing a precognition piece. The fact however remains that this practice is indeed happening, and that if people don’t stand up and voice their displeasure with media companies hijacking the news in this manner then this practice may very well become  the status quo.

So having written briefly of the consequences of this disturbing trend, I thought I’d explore further the concepts of this practice, it origins and the various applications that have occurred thus far.

Hot news is a long recognised but seldom used common law doctrine that assigns a temporary property right to the reporting of a hot news item, similar to copyright but obviously with a much shorter expiration period.

It dates back to a 1919 US Supreme Court decision, and has the following five factor test.

1/ the news is gathered at a cost,

2/ the news is time sensitive

3/ the other party use of the news, takes advantage of the effort, but provides no compensation

4/ the other parties’ use of said news is in direct competition with the reporter, composer and producer of the news

5/the use of the news would lessen the incentive for the reporter, composer and producer of the news to continue to produce the news or substantially reduce the quality of the said news.

These are rather broad in their scope and could easily be corrupted to stifle competition.

Now obviously rules, laws and regulations are conceived and enacted to correct a perceived injustice that existed at the time. In the case of Hot News this was created to protect news gathers in a time when there was a very high costs in reporting the news due to geographical and technological limitations. News agencies would spend huge sums to embed journalists is the field , set up bureau’s in remote locations and generally source and report the news themselves. However less than scrupulous news organisations would simply buy the competing newspaper edit and rewrite said stories as if they had researched the facts themselves and of course publish.

This seemed unfair and it was, the world was a vastly different place than it is today and that republishing others costly work could seriously undermine a news organisations ability to fund the sourcing and creation of said news, this outcome would not have been in the best interests of the community and thus laws were enacted to prevent this. However as technology advanced and the world really became a lot smaller, news became more instant and the advent of television meant these disputes faded away. These days basically the news is all the same, competition exists in how organisations differentiate their copy through pictures, commentary and editorials but the basic premise is the same.

The Hot News Doctrine is not as sometime assumed an extension of copyright.

You can not copyright facts or idea’s, copyright does not protect ideas, concepts, systems, or methods of doing something. Your expression of the ideas however can be copyrighted.

So what has happened to bring this hoary topic to the fore? Well quite simply you are using it right now, I am of course referring to the internet and advent of the news aggregator Wikipedia.org has the following definition

In general internet terms, a news aggregation website is a website where headlines are collected, usually manually, by the website owner.

In computing, a feed aggregator, also known as a feed reader, news reader, rss reader or simply aggregator, is client software or a Web application which aggregates syndicated web content such as news headlines, blogs, podcasts, and vlogs in a single location for easy viewing.

Newspapers regularly object to these practices, arguing that they dilute the value of their own work, and that because these aggregators present the most valuable text of any given story in the headlines that the majority of readers just consume that text and never bother clicking through and linking to the original story, Also of concern and in my opinion their biggest beef is that these aggregators sell advertising in direct competition to the news sites and are thus profiting on somebody else’s work.

Arstechica wrote a brilliant article on this topic that you can read here, as well Techdirt have covered this issue on multiples occasions both here and here. I would recommend that if you are interested in this topic that you read these articles.

So what is happening now that so alarms me well this from THE NATIONAL LAW JOURNAL

“Southern District of New York Judge Kevin Castel rejected a motion to dismiss a claim brought by the AP against All Headline News Corp. (AHN) for misappropriating AP breaking news and presenting it as the work of its own reporters.

The rulings came in The Associated Press v. All Headline News Corp., 08 Civ. 323, a suit where the AP alleged that defendants W. Jeffrey Brown and Danielle George instructed “poorly paid individuals” at All Headline News to locate breaking news stories from other sources and edit them for use under the All Headline News banner.

While the seminal case of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), would “render the federal common law origins of International News Service non-binding on the federal courts,” Castel said, the doctrine persisted in several states, including New York.”

Click to read the full text here

And this article from THE AM LAW DAILY

“That’s the tort three banks represented by Weil, Gotshal & Manges used to win an injunction against the breaking Wall Street news site Theflyonthewall.com, according to The Am Law Litigation Daily. The banks claimed Fly’s practice of publishing pieces of research reports almost instantly undercut their work by making key nuggets meant for exclusive client use available to a wider audience immediately

The banks–Merrill Lynch, Barclays, and Morgan Stanley–claimed that Fly was “free-riding” on their work, stealing their intellectual property, and costing them money, the stories say. They asked Judge Denise Cote of federal court in Manhattan to bar Fly from publishing their reports for four hours or until noon at the earliest, Bloomberg says.

Cote ruled for the banks but shortened the prohibition. “

Click to read the full text here

So as you can see the principles of HOT NEWS are again being used against some web content, and although both these cases seem extreme and the outcome is probably fair, I am concerned that this practice if not contained could as I discussed yesterday lead to the news again being owned by large media organisations to the exclusion of everyone bar the powerful players. Precedents have a way of gaining momentum and I trust this troubling concept is not going to disappear any time soon

like this article have something to add leave me a comment, I would love to hear your opinions on this hot topic.

UPDATE:  I have added this new article that further explores these issues with some breaking news from Germany.

Pouring cold water on competition, The News its heating up
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