By Denise Ouellet

Can someone own news? You’d probably guess no since it’s really just a reporting of facts and how could someone own a fact? The Associated Press feels differently and so do other proponents of the “hot news” doctrine. They want to assert rights to news they publish that is first-to-press, a dangerous notion in a world where publishing can occur simultaneously across the world over the Internet.

Two classic Supreme Court cases – International News Service (INS) v. The Associated Press (AP) (1918) in property law and Feist Publications v. Rural Telephone Service Co. (1991) in copyright law — bring us conflicting answers on who “owns” the news. INS tells us that news aggregators have a limited property interest in what they gather yet Feist tells us that they can’t prevent anyone from copying it because no one can “own” facts.

The ongoing dispute on how the two cases contradict one another has been called into question again by a recent case between the Associated Press and All Headline News. The AP is saying that part of the INS ruling remains part of New York’s common law and therefore it owns a property interest in its “hot news.” The opposing argument is that the Feist ruling reversed the INS decision by finding that there is no copyright in facts. In Feist, the court found that copying an entire phonebook does not violate copyright law because all the phonebook contains is a list of facts and the alphabetical listing is not sufficiently creative to afford it protection. The court noted in this decision that the amount of time and energy that goes into creating the phonebook does not give it copyright protection since copyright does not protect labor, it protects original works of authorship. This is where AP pulls in the INS five-factor test for when a news organization does have (property) rights in the news it aggregates:

(1) A plaintiff generates or gathers information at a cost;
(2) The information is time-sensitive;
(3) A defendant’s use of the information constitutes free riding on the plaintiff’s efforts;
(4) The defendant is in direct competition with a product or service offered by the plaintiffs;
(5) 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.

This five-pronged test has been dubbed the “hot news doctrine” because it creates rights in news stories that are intended to be breaking the news. As critics of this test have pointed out, it effectively covers all news in which the publisher attempts to scoop its competitors. However, by allowing the case to move forward, New York has essentially reaffirmend INS.

Two First Amendment and media attorneys recently published an opinion piece in the Washington Post suggesting that the hot news doctrine should become federal law. Given their prejudices in having represented several media organizations, the two lawyers have received considerable flack for their comments (not just the comments pertaining to hot news). To expand the hot news doctrine as federal law would create property rights in almost every news story and effectively create copyright protection in facts, which belong to the public. It does not make sense to punish someone for mentioning or reporting on something that is a fact because they learned about it through another news source. The individual does not “take” anything from the first person in reporting that a fact exists. It’s simply not a logical argument.  To allow it to prevail could bring news reporting, especially online where news breaks so quickly across the entire country, to a grinding halt.

As the legislature continues to explore options for helping out the news industry in the near future, I hope that opponents to the hot news doctrine continue to step forward and voice their opinions. To make the hot news doctrine federal law is not even a slippery slope, it would bring an immediate drastic change to how news is reported.