Like many bloggers, I learn which topics are “hot” from aggregators like Techmeme–which in turn automatically aggregate news sources from around the world (though lately they’re also receiving help from human volunteers). I’ve always thought this fell under the doctrine of fair use.
But apparently neither the Associated Press nor the courts think so. As Joe Mullin reports at The Prior Art:
A New York federal judge ruled Tuesday that The Associated Press can sue its competitors not merely for copyright infringement, but for a “quasi property” right in the news known as the “hot news” doctrine.
As Mullin points out, this doctrine seems broad enough to cover any instance where one news organization covers a topic after being “scooped” by a competitor. Surely no one would dream of applying it so broadly, but stranger things have been known to happen.
Intellectual property law is crazy enough without entertaining a world where me-too coverage–or even mere citation–is considered theft. I hope that this lawsuit established a sustainable standard of fair use. I shudder to think that Techmeme could sue me for writing this post–if Mullin didn’t sue both of us first!
The Noisy Channel 
8 replies on “Quasi-Property Rights: Associated Press and the “Hot News” Doctrine”
A sticky wicket indeed. How does this not apply to ANY re-transmittal, aggregation or reuse of an RSS feed?
I’m of two minds about this, on the one hand no one likes a free-loader.. on the other hand the idea that some ‘owns’ a scoop or a sports score of a game in progress is close to information insanity.
One can not simply reword/rewrite someone else’s term paper and hand it in without violating academic ethics.
The danger is in agreeing to this concept and having any associated timeline of protection indefinitely extended as we have now with copyright law. I don’t reasonably expect Mickey Mouse or Robert Frost poems to fall into the public domain in my lifetime.
So what’s a reasonable deadline for hot news to expire and how can it be made to be unextendable?
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“The AP claims that AHN tells its employees to search other Web sites for breaking news stories, then copy or rewrite them and distribute them as AHN stories.” (according to Editor and Publisher).
Copying stories is clearly a copyright violation. But rewriting them? I’m not sure I want the courts making that determination, especially when we’re talking about news stories that are themselves rewrites of reality.
I might accept a standard that rules out all mechanical rewriting. At the risk of discriminating against AIs, that would at least create a legally enforceable line that aligns with the spirit with copyright law.
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Following the spirit of the “hot news” doctrine and the spirit of the copyright law, the outcome should encourage investment in the further generation of “hot news”. Preventing systematic “free riding” or “mechanical rewriting” (as you suggest) should actually accomplish this.
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I’m not sure what “free riding” means in this case, but one natural interpretation might be one in which the re-publisher would be guilty only when the cost of re-publishing is zero. Of course, that doesn’t make any sense strictly, but we might still say that the re-publisher would be more likely to be guilty the closer to zero the cost of re-publishing is.
But that doesn’t work for the simple reason that we don’t really care how much value people sink into content; we care about how much value users reap from content. So the “free” in “free riding” might refer to the added value–or the lack thereof. In this light, we might say that the re-publisher would be more likely to be guilty the closer to zero the value of re-published content adds to the world.
I certainly share the shudder from the thought of further complications or broadly value expansions of copyright and similar law, but I also have little regard for services that add nothing to the world. To the extent that Techmeme filters news, adding real value by showing us what bloggers consider “hot” in a way the AP stories themselves do not, I would hope it wouldn’t be threatened by this kind of claim.
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The problem with defining value in the way that Josh attempts it above is that if a news source has a broad readership, the value it has may by some metrics exceed the “value” of a source that originated the news item but has a much smaller audience.
It seems to me that this is an attempt by Big Media to undermine non-traditional channels, since it seems that outlets like AP, NYT, etc. cross-license each other’s content.
What I’d like to know is why copyright law is not sufficient to cover the “scoop” owner. Is the problem that of lack of attribution?
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Gene’s right. My definition isn’t quite right. There’s value just in the act of showing content to someone, and that means not only that a media outfit with broader reach could too easily satisfy the definition but also that a media outfit with merely a *different* reach could as well.
Suppose, however, that we start with what I put on offer but consider it on the basis of each potential marginal user. We’re controlling for reach altogether and focusing just on the content and, essentially, whether it’s better for some users.
I think this gets at why copyright itself can’t protect the scoop owner. Copyright is essentially about *copies* in the sense of exact replicas. You can’t copyright meaning. You can only copyright the thing itself. This makes sense because unauthorized copies of a thing add zero value to world per potential marginal user. Each of those users would be equally happy with authorized copies.
In view of this, the “hot news” doctrine is just a more general expression of copyright. We don’t really care about the way information is presented, after all; we care about the information. But we also don’t want government to be involved in meting out justice based on the messy business of meaning. We’ve stuck with copyright because we’re confident that courts can reliably recognize identity but cannot reliably recognize synonymy.
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That’s why I was thinking that we could draw a fine line by defining “copying” as any purely mechanical act, e.g., machine translation. At least that avoids some of the messier ontological / epistemological questions about the nature of meaning. Mainstream America is in no mood for another episode of defining what “is” means. 🙂
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Gene:
regarding comment 5
get this AP sued them as well for including the proper type attribution for when AHN writers refered to the piece.. like in “the AP reported that this even happened.”
Really this looks more like a big media company trying to undermine new and more effective news channels.
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