Law & Disorder

What do bloggers and a 1918 newspaper syndicate have in common? According to the Associated Press, both are wretched hives of scum and villainy—parasites, if you will, sucking a healthy living from the AP's expensive newsgathering operations.

And the AP means to do something about it, reviving a legal doctrine it helped to create back during World War I: the concept of "hot news." Here's what you need to know about facts and the quasi-property rights that news organizations can exert over them... sometimes.

Read and rewrite

1918—the US was at war, pandemic influenza was on the loose, and the AP was complaining about being ripped off. Sound familiar?

Back then, AP competitor International News Service resorted to all sorts of underhanded tricks to stay competitive, up to and including outright bribery. INS paid workers at AP newspapers, who would pass along stories before they were published. This was a plainly illegal way of getting the news, but what happened next was more interesting: INS simply rewrote the AP stories, then zipped them across the telegraph wires to papers across the country. And, in many cases, it didn't even use bribery; INS simply grabbed early copies of AP newspapers and went to work.

The Supreme Court, which eventually dealt with the lawsuit brought by the AP over this issue, described the effects of the INS practice:

Most of the foreign news reaches this country at the Atlantic seaboard, principally at the city of New York, and because of this, and of time differentials due to the earth's rotation, the distribution of news matter throughout the country is principally from east to west; and, since in speed the telegraph and telephone easily outstrip the rotation of the earth, it is a simple matter for defendant [INS] to take complainant's news from bulletins or early editions of complainant's members in the eastern cities and at the mere cost of telegraphic transmission cause it to be published in western papers issued at least as early as those served by complainant.

Sometimes, in fact, INS papers in places like California could actually publish the news before the local AP paper, making it look as though INS had the scoop.

The reason for the whole absurd state of affairs was censorship. US and British forces implemented tough restrictions on war correspondents in 1917-18, making them post bonds and otherwise operate on "good behavior" that kept them from publishing accurate accounts of the war. Those who irritated the military had their permission to serve as war correspondents revoked.

INS was not able to secure a correspondent slot in the UK, which meant that it had no direct access to the single biggest story of the day—European war news. Hence the skullduggery, bribery, and rewriting.

But, leaving aside the issue of the bribery, were INS's other practices actually illegal? It's a tougher question than it might at first appear. The issue wasn't about copyright, as the Supreme Court made clear. No direct plagiarism was involved, and copyright has never given someone control over facts about the world.

Or, as the justices put it, "It is not to be supposed that the framers of the Constitution, when they empowered Congress 'to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries' (Const. art. 1, 8, par. 8), intended to confer upon one who might happen to be the first to report a historic event the exclusive right for any period to spread the knowledge of it."

And yet there was a common-sense intuition that expending no real expense and only limited effort to simply rewrite wholesale the work of another person for purposes of profit—well, surely something must be wrong with that.

"Stripped of all disguises," said the justices, "the process amounts to an unauthorized interference with the normal operation of complainant's legitimate business precisely at the point where the profit is to be reaped, in order to divert a material portion of the profit from those who have earned it to those who have not."

The Court ruling created the "hot news" doctrine, in which groups like the AP are granted a pseudo-property right to breaking news stories. The right is quite limited, generally applying just in situations where another party rewrites the news "without independent investigation and verification."

Hot news, like the flu, is still with us

The principle, in somewhat changed form, is still recognized. Patent blog The Prior Art digs up the Second Circuit's criteria for "hot news," which now consists of five points (in New York, anyway; thanks to further rulings, the original case is no longer binding federal law):

• A plaintiff generates or gathers information at a cost
• The information is time-sensitive
• A defendant's use of the information constitutes free riding on the plaintiff's efforts
• The defendant is in direct competition with a product or service offered by the plaintiffs
• The ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.

The issue has come up repeatedly in court cases. Could a company market a small pager-type device that would display real-time sports scores and stats while games were in progress? Could a company simply copy all the listings in a competitors' phone book, even though they had taken tremendous effort to assemble the data? Both cases were real, and both tested the limits of "reporting facts."

The AP recently sued All Headline News over the same issues it raised back in 1918, claiming that AHN simply employed people to rewrite AP content and headlines (at least INS employed actual reporters on non-war stories). Earlier this year, the judge overseeing the case allowed it to go forward and included a lengthy discussion of "hot news" and the INS case of 1918 in doing so.

But the "hot news" case has always been contentious, since it does appear to grant some organizations control over facts in certain narrow circumstances. In 1918, Justice Holmes objected to the majority decision.

"When an uncopyrighted combination of words is published there is no general right to forbid other people repeating them—in other words there is no property in the combination or in the thoughts or facts that the words express," he wrote. Holmes said that INS was wrong to operate the way that it did, but that the only legal remedy should be a requirement that INS identify the AP as the source of the story.

"I think that within the limits recognized by the decision of the Court the defendant should be enjoined from publishing news obtained from the Associated Press for hours after publication by the plaintiff unless it gives express credit to the Associated Press," he wrote, "the number of hours and the form of acknowledgment to be settled by the District Court."

Justice Brandeis was also concerned about creating a quasi-property right over facts. "No question of statutory copyright is involved," he said. "The sole question for our consideration is this: was the International News Service properly enjoined from using, or causing to be used gainfully, news of which it acquired knowledge by lawful means (namely, by reading publicly posted bulletins or papers purchased by it in the open market) merely because the news had been originally gathered by the Associated Press and continued to be of value to some of its members, or because it did not reveal the source from which it was acquired?"

He concluded that "the knowledge for which protection is sought in the case at bar is not of a kind upon which the law has heretofore conferred the attributes of property; nor is the manner of its acquisition or use nor the purpose to which it is applied, such as has heretofore been recognized as entitling a plaintiff to relief."

Similar doubts have been raised in most cases litigated since.

Our messy modern world

It all sounds a bit archaic, but the debate is back in the news today in a big way. The AP hasn't just gone after operations like All Headline News; it has made dark pronouncements about bloggers and aggregators, too, implying that even its headlines might be protected content.

Depending on how hard it pushes the "hot news" idea, the AP (and similar services) could spark a new war over the quasi-ownership of facts. Fair use, which applies in copyright cases, would not be a defense against a property claim, and most journalists arguably violate all five of the "hot news" tenets listed above.

The issue turns on the last item—whether the free-riding disincentivizes the news collector. Given the "link ethos" of the Web, this would seem to be the point at which a clear distinction could be made between much modern practice and the INS case of 1918.

While INS purposely stripped out byline information and refused to credit the AP as a source, most such digesting and rewriting of news today is accompanied by a link to the story in question. The AP might claim that it's being harmed, but the linkers might claim that they actually drive more traffic the AP's way. As journalistic revenues dry up, expect to see battle lines drawn once the issue begins to feel like a question of actual survival.

But news is broken everywhere today; small niche blogs are better at bringing technical stories to light than are groups like the AP, and groups like the AP and Reuters consistently write up stories even when they are scooped by a rival (look for clues like, "According to the Wall Street Journal..." in news stories).

Unlike some of the other "hot news" cases that helped to establish the doctrine, today's vibrant, chaotic media landscape means that no one is simply out there "breaking news" that others rip off, rewrite, or comment upon. Everything is mixed, blended, messy, and pushing too hard on "hot news" could easily backfire.