14 July 2009

"Hot News" Doctrine Dice Not Rolled

A federal judge in the New York lawsuit had ruled in February that AP properly asserted the [hot news] doctrine, first recognized by the Supreme Court in 1918. While facts can not be copyrighted, under the hot news doctrine news outlets can sue a rival for re-reporting “time sensitive, ‘hot news.’”

From here.

The defendant in the case argued that:

the “hot news” doctrine was pre-empted by the 1976 Copyright Act. . . [and] that the lawsuit represented “an attempt by plaintiff Associated Press to accomplish through alternative legal theories what AP is prohibited from accomplishing under the Copyright Act: Preventing another news service from reporting facts about the news after those facts have been published and entered the public domain.”

The defendant wasn't willing to gamble on taking the case to trial or losing on appeal, so the case settled.

The "hot news" doctrine has the potential to do an end run around the fair use defense to copyright law that is critical to the enterprise of blogging. The most recent affirmation of it, in 1997, involving real time sports score transmission has since been somewhat undermined by cases holding that fantasy baseball leagues don't violate IP rights by using publicly available scores and by the special nature of sports events where the underlying rights are owned by the teams, the fans are in privity with them, and the media are granted access as contractual licensees to closed door events.

Perhaps the best solution is to put this doctrine on the list of matters that need to be included in statutory reform of intellectual property laws.

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