Hot or not: Breaking down the hot news doctrine

 

In 1918, the First World War was raging and International News Service (INS) and The Associated Press (AP) were competing to get the most timely, accurate and important stories from the front lines. The competition between the two was, at times, extremely fierce and underhanded.

However, after INS, which was owned by fame newsman William Randolf Hearst, published an unfavourable account of British deaths in a battle, the organisation lost its access to the Allies’ telegraph lines. This effectively shut them out from reporting on the war.
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INS was not to be discouraged. Due to the slow delivery of news, INS realised that, if it could gain access to the AP feed, it could rewrite the stories and distribute them with only a slight delay on the East coast of the US and no delay at all on the West.

That, in turn, is exactly what INS did.

Through use of bribery, early papers and other means, INS gained access to the AP’s article and paid reporters to rewrite them. Since facts could not be copyrighted, then or now in the US, it would, theoretically avoid any copyright issues. 

But that did not stop the Associated Press from filing suit. In May of 1918, the Supreme Court hear the case and in December of the same year, they returned with their verdict, which is now known as the “Hot News” ruling.

For the most part the ruling has been forgotten. It is one of the least-cited cases from the US Supreme Court. However, in recent months, it has made a comeback of sorts, once again spurred on by the AP.

Hot News in 2009

In January of 2008, the Associated Press filed suit against All Headline News, an online news organisation that, much like INS, was taking AP stories and rewriting them, removing all attribution and citation. The AP filed suit on a number of grounds, including trademark infringement, unfair competition, copyright infringement and, most controversially, misappropriation of hot news.

In February of this year, the New York judge in the case allowed the hot news argument to move forward, although he tossed out several of the other arguments. In March, the two sides agreed to enter arbitration on the issue and, in July, the two sides reached a settlement. The settlement has AHN paying unspecified damages to the AP and ceasing its practice of repurposing AP stories. 

Hot news has also played a part in other important news-related copyright cases, including most prominently gossip blogger Perez Hilton’s dispute with the photo agency X17. 
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The likelihood of more hot news claims seems certain as the Associated Press look to have more legal battles with content aggregators. However, it isn’t just in the United States where the issue is being raised. In the EU, the European Publishers’ Council (EPC) and the World Association of Newspapers (WAN) recently signed a document they call ‘‘the Hamburg declaration’’ where they ask for greater intellectual property protection, including, most likely some of the protections afforded hot news in the US.

Despite all of this, the hot news ruling remains one of the most misunderstood and most confusing rulings in US intellectual property law. As it gains newfound attention and influence in the age of the Internet, it is important to understand what the ruling actually says and how it can help.

What is hot news?

One of the most confusing elements of the hot news doctrine is that it is not an actual copyright infringement case. Rather, it is consider “misappropriation” under US law.

This is an important distinction for two different reasons:


  • No copying takes place: Both the AHN and INS cases involved aggregators that were rewriting the stories or only copying non-copyrightable facts and information. While these uses are unethical, they are not necessarily copyright infringement. The hot news doctrine was designed to bridge that gap.


  • Different forms of relief: Where copyright infringements come with high statutory damages and additional rights, such as the ability to secure removal of infringements posted to the web, hot news does not. This is why the AP was forced to sue AHN rather than simply demanding imageremoval of the content. 



Since the court realised it was creating a copyright-like statute for non-copyrightable works, it intentionally made this protection very limited, establishing five criteria that news must meet before receiving hot news protection:


  • Plaintiff generates or gathers information at cost


  • The information is time sensitive


  • The defendant’s use is free riding on the plaintiff’s efforts


  • The defendant is in direct competition


  • The ability of others to free-ride on plaintiff’s efforts would substantially reduce the incentive to produce the product or service so that its existence or quality would be substantially threatened




Given those restrictions, it is easy to see why so few hot news cases have been raised over the past 90 years. However, as the Internet has made it easier and easier to redistribute timely news content, not to mention create competitors to established news-gathering services, these cases will almost certainly be on the rise.

Limitations to hot news

There are several limitations to hot news doctrine that will likely limit its application in future cases.


  • Time frame: Hot news only remains “hot” as long as it is “time sensitive”. Given the nature of the current news cycle, news may stop being time sensitive in a matter of hours. A lot of the aggregation news providers are concerned about what takes place after the news exits that period.


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  • Free-riding: The cases where the hot news doctrine has been successfully used have involved incidents where the defendant was rewriting the content without attribution. Most aggregators provide some attribution and it is unclear if “free riding” can include cases where credit is given.


  • Fair use: Finally, even though hot news protection itself is not a copyright issue, there is little doubt that it will be constrained by fair use, which allows others to use portions of other’s work for certain purposes. Where this line is drawn will have to be determined by future court cases, but it is easy to see how fair use and hot news could clash in future disputes.





As appealing as the idea of protection of “hot news” is to many journalism organisations, it is not the solution to protecting ones work on the web that many are hoping it will be. Many aggregators are likely not violating the doctrine and it is likely that many of the targets of the AP’s ire over repurposing news will not qualify for a hot news lawsuit.

That, in turn, is a big part of why the AP raised but did not pursue a hot news claim during its conflict with the Drudge Retort. The site, which was using headlines from AP stories and linking to the original articles, was not likely a good candidate for a hot news case.

Bottom line


While it seems odd that a 90-year-old Supreme Court ruling could come back from relative obscurity to have such a drastic impact in the Internet age, it is easy to see how the ruling deals with issues that are more common in the age of the web than the age of the telegraph. 

That being said, even though the AP is clearly wanting to press its hot news rights and other news organisations are either looking to do the same or are seeking similar laws, it is important to remember that hot news, while a potential legal tool against some that repurpose news content, is not a magic bullet. The rights are far too limited and its application far too difficult.

This is not to say that hot news might not be valuable protection for those who provide original reporting, but it cannot save the industry by itself. 


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Flickr images from users Jack Russell 2 and brizzle born and bred