Hot news misappropriation settlement – Dow Jones & Co. Inc v Briefing.com Inc

THE APPLICATION OF THE HOT NEWS MISAPPROPRIATION DOCTRINE TO THE DIGITAL AGE

A consent agreement was recently consummated between Dow Jones & Co. and Briefing.com. Dow Jones & Co. had brought legal action against Briefing.com alleging copyright infringing and misappropriation of their news.

Within the terms of settlement the defendant admitted liability for copyright infringement and misappropriation of the the tort of unfair competition in the form of the “hot news” doctrine. The lawsuit alleged that Briefing.com had republished Dow Jones’ news headlines and portions of their news articles.

Briefing.com agreed to pay a sum of money in settlement of the proceedings and facilitate Dow Jones’ access to its website to allow them to monitor their compliance with an injunction to desist from committing further infringement of Dow Jones’ copyright in news articles. Briefing.com’s instantaneous misappropriation of Dow Jones content also incorporated news from The Wall Street Journal and Barrons. The defendant had copied and pasted Dow Jones news and headlines, and published the content on its own news feed.

Dow Jones had clear evidence of the defendants’ copying and pasting which meant that it could have prevailed on it’s copyright claim. However Dow Jones seemed to be aiming at shoring up it’s legal position in terms of establishing the viability of the hot news doctrine which could potentially apply to a less clear cut case of ‘appropriation by an online publisher. This is because the hot news misappropriation doctrine operates beyond copyright and is designed to prevent news and other organisations from re-reporting or republishing time-sensitive data of any kind which has been gathered by others within a certain period within which it retains it’s commercial value.

Dow Jones are declaring the settlement as a vindication not only of copyright held in their articles, but more significantly of the “hot news” doctrine which had its genesis in the International News Service v Associated Press (INS) in 1918.

In an earlier 2009 settlement between Australian News Headlines (ANH), an online news provider, and Associated Press (AP), AP compelled AHN to give their legal opinion within the terms of settlement to the following effect: the hot news misappropriation doctrine has been upheld by other courts and was ruled applicable in this case by U.S District Court Judge P. Kevin Castel“.

This requirement has the distinct feel of a teacher forcing a child to write on the blackboard “I will not talk in class” one hundred times, or forcing a litigant in a settlement to say ‘they were right and we were wrong‘. Whilst it is true that the ‘hot news misappropriation doctrine” raised by AP in it’s legal action against ANH, survived a preliminary motion for dismissal, as a Washington based Attorney observed “settlements don’t validate legal theories, court opinions do“. There is a degree of muscle flexing on the part of AP, a determination to send a strong message to other online news distributors that they will mount similar legal challenges against them if they engage in similar activities as ANH.

The question whether either print or online news can be stolen is not just an academic question, particularly given the demands of the newspaper industry for copyright and misappropriation protection for their news stories. The newspaper publishing model is under siege from alternative outlets for the publication of news with the advent of the internet, and has started to engage in legal battles over the rights to news which appears on the internet.

It is a well known fundamental principle of copyright law that ideas cannot be owned, a principle which has been re-iterated by many US Courts. The US Supreme Court in the case of Feist Publications Inc. v Rural Telephone Service Co. 499 U.S. 340 (1999), held that “all facts, ,scientific, historical, biographical and news of the day are part of the public domain available to every person” (p348). The Court reaffirmed that the US Constitution prohibits copyright protection for facts contained in a database, stating “the raw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art“. (p350).

The consequence of this principle for journalism and the newspaper industry is that whilst a certain degree of selection, creativity and judgement involved in the arrangement of a news story amount to copyrightable expression when assembled in a sufficiently original manner, the underlying news itself, namely the facts and events recounted cannot.

Applying this analysis, a person involved in re-writing news articles which involves re-working them and using the underlying facts alone to produce an independent work would probably be protected based by copyright principles. This is provided they didn’t appropriate a substantial part of the original expression embodied in the original work or wasn’t protected by a defence of fair use.

However, unlike in Australia and other common law countries, the legal enquiry regarding whether news articles can be appropriated by one news entity by another in the United States extends beyond an enquiry involving copyright. The tort of misappropriation, a species of unfair competition law, operates in a different way to copyright and Congress indicated that it didn’t intend to pre-empt misappropriation claims.

The statements made by both news publishers, AP and Dow Jones & Co Ltd to the effect that the “hot news doctrine has been upheld” or is a viable involves some posturing. It would be more accurate to say that the publishers have revived a doctrine which may be almost a century old, having been established in 1918, but which has had a chequered history, and has always been open for a newspaper publisher to invoke.

The dominance the newspapers have enjoyed has been steadily diminishing and competition has been driving media interests to consolidate. Newspapers went from being very profitable a few years ago, to not being profitable in a relatively short period of time, which has accelerated the cost cutting. The cost cutting means they lose some of their value, which doesn’t go unnoticed by a new generation who starts to see value in acquiring their news from a diversity of sources and consume media differently.

Since the INS case there has been quite a lot of case law involving hot news misappropriation claims relating to all kinds of data from stock quotes, sports data, weather data, entertainment data and other time sensitive data.

In 2008 AP decided to use the hot news doctrine first established in 1918 by bringing a case against All Headline News Corp (AHN) alleging that it’s news content was being stolen by AHN. AHN is a business describing itself as a provider of news, weather and other content for websites, digital signage, interactive applications, broadcast and print use.

Ironically, AP was involved in the original 1918 case from which the tort of misappropriation originated, and which only later came to be recognised by other Courts as having established the “hot news” doctrine. In 2009 the case was settled by AHN paying AP an undisclosed amount for unauthorised use of their news content. (Associated Press v All Headlines News Corp, 608 F. Supp. 2d 454). The case survived a preliminary motion for summary dismissal brought by AHN, which isn’t persuasive, but merely leaves a news organisation open to arguing what has always been a doctrine which was open to them to argue to prevent what they label “digital privacy“.

AP asserted that AHN was “free-riding” on AP’s efforts to collect, report and distribute newsworthy information in direct competition with AP’s own services.

The INS case in 1918 precedent was established at a time before internet technology, at a time when the news stories the subject of the case were relayed over the phone, via bulletin boards and from AP’s affiliate newspapers by their competitor INS. The news cycle has changed since this time in addition to the technologies involved. The newspaper is no longer dominated by editions. At the time of the INS case there weren’t even any international cables connecting the US to Europe.

INS began taking news from AP member newspapers and copying it to AP Bulletin Boards. By doing so they were even beating AP publishing their own content, by taking AP content from earlier editions of East Coast newspapers containing AP’s content. At the time most of the big newspapers were on the East Coast of the US. AP elected to hold the news from their western affiliates, rather than making sure their western affiliates had the news at the same time and printed simultaneously. However AP wanted to hold off printing on the West Coast to maximise their profits on the west coast.

Meanwhile the content was being published on the east coast.
There existed the morning, afternoon and evening editions. The landscape has changed since INS. As discussed below, in the 1918 case, the Courts did not put a time frame on how long ‘news’ remains fresh, although it was proposed by one Judge, Justice Oliver Wendell Holmes that the injunction then sought by AP to prevent INS publishing it’s news stories should remain in force for a time period of two hours only. The court case was said to vest temporary ownership of factual ownership of news in a news agency, but only long enough to preserve their incentive to continue to produce the news.

In 2008 AP started voicing their concerns over bloggers and websites using their news content to publish stories on the internet. AHN were systematically taking AP stories, employing Malaysians to re-write them, from which it could derive significant cost savings. Once aggregated, the stories were put into news feeds by AHN and distributed to it’s subscribers, distributed via AHN servers.

AP argued that AHN’s activities were likely to destroy it’s business relationships as ANH’s news service was in direct competition with it’s service and both services sold to the same customer base.

There are two competing principles at stake, not dissimilar to the arguments which have arisen between the proponents of strong database legislation and those concerned about the effect that such legislation would have in terms of ‘locking up’ facts.

AP’s and other news organisations contend that they have a right to make money by investing in the process of news gathering and reporting and deserve protection from free-riders such as ANH. AP argue that without such protection their incentive to publish will threaten their very existence, which is not in the public interest.

AHN argued that AP was merely trying to destroy a small company in the business of digital distribution of news which it perceived as a threat. AHN’s unsuccessfully argued before the Court in a preliminary motion to dismiss AP’s action that Florida law didn’t recognise a tort of misappropriation, however the Judge decided that the case was to be determined under New York law.

By re-visiting the INS case in 1918 and tracking the evolution of the tort it will become apparent that the tort was intended to be interpreted narrowly and there are several factors including’time sensitivity‘, which were intended to as a critical limiting factor in the application of the tort.

It is appropriate to mention the lengthy proposals for the reform of database legislation in the United States, many of which foundered, resulted in a state of legislative gridlock. The reason for this is that the proposals attempted to incorporate INS misappropriation principles, which proved to be a source of great contention.

Whilst database vendors lobbied for database legislation which would give them sufficient lead time to recoup their investment in creating databases, many lobbied against too liberal an application of INS based principles. There were serious concerns about the spectre of protecting factual information under the guise of ‘copyright like’ database legislation. This is what has occurred in Europe which has very strong database legislation in addition to copyright legislation. Database legislation is regarded as sui generis (one of a kind) rights and is recognised as being separate from copyright.

There was concern voiced during the database debates that too much protection locks up facts. Posterity benefits from the protection of DNA maps, health data, satellite imagery, just as we and our ancestors have benefited immensely from maps, news and other fact based reference works.

When one examines the copyright decisions in the eighteenth and nineteenth centuries, it appears that works were legally characterised in terms of the labour and expense invested by an author. The classical ‘sweat of the brow‘ doctrine, which up until the Ice TV case, still applied to literary factual based works such as timetables, phone books and other compilations in Australia, meant that an innovator had to make substantial additions to ‘low authorship‘ or ‘personality deprived‘ works before they had a right to copy them. A map is a classic example of useful data gathered and presented.

The difficult thing about making a map, particularly in the eighteenth and nineteenth century, was acquiring the data such as the measurements, which was a very labour intensive process. Survey expeditions were risky endeavours, expensive and time consuming. The mapmaker was protected against a second comer tracing their map, however when a second comer’s toils resulted in the making of substantial additions, the second comer gained, gained, in effect, an unrestricted licence over the original work.

In economic terms, the only thing the original author was left with was an inferior substitute of the improved map, which they could continue to sell. They had no right to the new map or licence fees from the innovator. The protection of the map was, in essence, a protection of the underlying surveys, of the data, and this protection only lasted until someone came up with an improved version. Courts were naturally reluctant to prevent the innovator from using the original work as that would “manacle science” in the language of the Courts.

The advantage of the system was that it promoted innovation, but avoided a tangle of licenses. The disadvantage was that the original author had no guarantee of recouping their investment and their compensation would depend on how quickly their work was superseded.

THE INTERNATIONAL NEWS CASE

The INS case was a controversial case, as evidenced by the fact that the decision recognising a tort of misappropriation was far from unanimous. Judges of the stature of the great Justice Louis Brandeis and Justice Oliver Wendell Holmes issued dissenting judgements joined by Justice McKenna.

Justice Brandeis’ dissenting judgement is one which makes for compelling reading. Brandeis objected to the conceptualisation of news as having the legal status of property susceptible of ownership or quasi-ownership. He preferred to depict it as a ‘report of recent occurrence‘.

Whilst there are other hallmarks of the definition of property, one of those is the owner’s right to exclude others from it.

Justice Brandeis made some very significant observations which are pertinent both to the tort of misappropriation as it implies to news publishing today in the digital culture, in addition to the law on databases insofar as proposals apply misappropriation principles to what are essentially collections of ‘facts’.

Brandeis noted that the Court should be reticent to create new rights particularly where they implicate important public interests in addition to private interests. He stated:

The creation or recognition by courts of a new private right may work serious injury to the general public, unless the boundaries of the right are definitely established and wisely guarded. In order to reconcile the new private right with the public interest it may be necessary to prescribe limitations for its enjoyment” (INS v Associated Press 248 US 215 at 264)

Brandeis further observed that Congress had already considered and voted against a Bill which concerned the very copy-like protection of ‘facts‘ which the Plaintiff Associated Press was seeking at p265:

A legislature, urged to enact a law by which one news agency or newspaper may prevent appropriation of the fruits of its labors by another, would consider such facts and possibilities and others which appropriate inquiry might disclose. Legislators might conclude that it was impossible to put an end to the obvious injustice involved in such appropriation of news, without opening the door to other evils, greater than that sought to be remedied. Such appears to have been the opinion of our Senate which reported unfavorably on a bill to give news a few hours’ protection; and which ratified, on February 15, 1911, the convention adopted at the Fourth International American Conference; and such was evidently the view also of the signatories of the International Copyright Union of November 13, 1908, as both these conventions expressly exclude news from copyright protection“.

That for which legislative protection was earlier sought happened to be ‘news‘, which the INS Court recognised, being mere ‘facts’ or ‘historical events‘, are not the proper subject matter of copyright.

Brandeis also alluded to concerns over monopolies, noting that the inability of INS to gather the news it published derived from a ban on INS correspondents imposed by foreign governments. This made AP the sole supplier of war news to the United States, absent any permission being granted to INS to publish. (p264).

The INS Court upheld an injunction prohibiting one news exchange service, INS, from copying news stories from another, AP, only until “it’s commercial value had passed away” (per Pitney J, citing the lower court judgements (245 Fed. 244, 253, 157 C.C.A. 436)

THE FACTS OF THE INS CASE

INS had wired the facts of APs’ news stories to it’s affiliated newspapers, some of which they had copied from Bulletin Boards and from APs’ newspapers published on the East Coast of the US.
In publishing on the West Coast they took advantage of time differentials. INS directly competed with AP’s newspapers on the West Coast, so INS was in effect, scooping some of the freshness of AP’s stories which hadn’t yet been published on the Western seaboard. The critical issue was whether the Plaintiff could obtain protection of the facts beyond the copyright of the stories, which for various reasons, were not protected by copyright.

The majority of the Court found that the appropriation by INS of the efforts, labor and expenditure AP had invested in assembling and producing the articles they published constituted unfair competition. The Court took an unprecedented step in finding a tort of misappropriation which went beyond any existing cause of action found in the law of unfair competition.

The broad proposition laid down by the INS Court can be summarised as follows:

When that which is acquired at a significant cost, and can be sold at a profit, is taken by one’s competitor to enrich itself by selling it at a profit to the other’s detriment, it takes on the character of quasi-property, which can be subject to misappropriation by a competitor because it is contrary to good conscience” (p238)

The court’s reasoning that the news taken by the defendant was property if not taken contrary to good conscience, but becomes property if appropriated contrary to good conscience, is a circular definition.

However when assessing the application of the tort, as framed by the INS Court, the Court placed clear restrictions on the application of the tort.

Firstly, the Plaintiff was required to demonstrate the investment of significant resources in that which they had acquired, and the protection of what was acquired was only available as against direct competitors. That which is taken could be any intangible of commercial value. The protection didn’t mean the investor could exclude it’s competitor altogether from acquiring what the Plaintiff had. The expressed intent of the Court was only to postpone the defendants from distributing the news gathered by INS, rather than to exclude them from doing so, and only to the extent necessary to allow AP the time to recoup their costs.

The Court cautioned that any injunction should be framed accordingly so as to protect the value of the plaintiff’s newspapers in it’s own area and only for a limited period of time after it’s publication. (p245-6). Justice Holmes, in his dissenting judgement, recommended that the defendants be enjoined from publishing until a few hours after the plaintiffs had published so that they could recoup their costs.(p248)

Justice Pitney stated that the cause of action shouldn’t be used to prevent a competitor from taking a competitors’ news as a tip to be investigated and, where verified by independent investigation the news gathered, onsold. (p243) It would be permissible for instance to use the news stories, independently investigate them and corroborate the information to create one’s own stories. This is to be contrasted with the use which the INS explicitly stated was forbidden use, namely slavishly appropriating information which was the result of someone else’s labour, without adding anything of value.

This is very much akin to the reasoning which informed the law relating to maps resulting from cartography expeditions in eighteenth and nineteenth century law. What was protected in the map making cases was data, not presentation. This is very much what the hot news doctrine is also trying to protect.

Clearly the INS Court’s findings embody what competition is supposed to be about in this regard by making it clear that there were permissible and impermissible uses of a news agency’s work, even where the news agencies are direct competitors.

There is a natural reluctance to accept a property or quasi-property right in news as it makes information inaccessible to persons who wish to use information to create transformative information products.

The INS judgement has been interpreted differently by different Courts. Some Courts interpreted it overly broadly whilst other Courts in the US were less eager to embrace it. (see Cheney Bros v Doris Silk Corp 35 F, 2d 279 (2nd Cir. 1929). Some Courts perceived the judgement as being based on vague notions of commercial immorality and the platitude that ‘one shall not reap where they have not sown‘. These notions were perceived to be too vague and difficult to apply in practicality.

Most common law countries, including Australia, have rejected the tort of unfair competition or hot news misappropriation. (Moorgate Tobacco Co. Ltdl, v. Philip Morris Ltd (No. 2) (1984) 156 CLR 414 at 445-6 & Victoria Park Racing and Recreation Grounds Co. Ltd v. Taylor (1937) 58 CLR 479.)

When one reviews the aftermath of INS, it is apparent that the INS case has been misconceived, as a close reading of it shows that the INS Court placed tight restrictions on it’s operation. The court emphasised the importance of the news taken being fresh and novel at several points in it’s judgement (p235, p238). The protection of it’s value was intimately connected to the spreading of it within a window period within which it retained it’s freshness.

This is why the INS Court would later be credited with having established the doctrine of “hot news”. Cases subsequent to INS reveal a lack of a clear and consistent articulation of the tort, with the elements relating to the nature and quantum of investment, the relationship between the competitors, and the notion of ‘time sensitivity’ being subject to different treatment in their application. Where the INS tort was applied it was subject to divergent interpretations.

In 1938 the Federal common law was abolished in the United States so that State Courts were at liberty to ignore the Federal Court decision or adopt it into their law as they saw fit. Misappropriation was always a creature of federal common law. The tort’s destiny was further jeopardised by claims that the US Constitution and the enactment of the Copyright Act in 1976 pre-empted the application of the doctrine.

The INS case has been applied by a number of lower Federal and State Courts. The Motorola case represents the first clear articulation of the INS tort and the restrictions placed on the application of the tort circumscribing it’s application.

The Motorola decision National Basketball Association v Motorola Inc. 105 F.3d 841 (2nd Cir. 1997) reveals the limitations of the tort. The Court’s conclusion was that a narrowly tailored doctrine of misappropriation survived pre-emption.

In the Motorola case, the defendant had transmitted commentary on basketball cases in progress in text form to subscribers through a pager system and onto a website, without the permission of the Plaintiff, the NBA. It was argued that the defendants had misappropriated property in the information in the scores the NBA had ‘created’ through their investment and promotion of basketball games.

The case is of significance to the AP v AHM case insofar as the Motorola case determined that a hot news doctrine is recognised in the State of New York. AP’s argued that the law applied to the 2009 case should be that of New York, whilst AHM stated that Florida law should be applied. Florida has not recognised a tort of misappropriation whereas New York has. recognised a tort of misappropriation.

The Motorola Court held that a cause of action for misappropriation exists where the following conditions are satisfied:

1. The Plaintiff generates or collects information at some cost or expense
2. The value of the information is highly time-sensitive
3. The Defendant’s use of the information constitutes free-riding on the plaintiff’s costly efforts to generate or collect it
4. The defendant’s use of the information is in direct competition with a product or service offered by the Plaintiff and
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 it’s existence or quality would be substantially threatened. (p852).

The Court found that the defendant Motorola had not engaged in free-riding as they had undertaken their own independent analysis of the games in compiling the text and their activities did not affect the NBA’s core revenues, namely their ticket sales and broadcast licensing fees such that their existence would be threatened. The scores were deemed to be ‘time sensitive’, being transmitted at the most a couple of minutes after the events occurring in the progress of the games. In summary, largely re-iterating the elements of the INS Court, the court imposed three requirements on the application of the tort; a) time sensitivity, b) a relationship of direct competition between the parties and c) free riding by the defendant on the plaintiff’s efforts.

Commercial Value and Time Sensitivity

The INS and NBA cases demonstrate that information has a particular value because of it’s “freshness” or “hotness”. Misappropriation isn’t aimed at copying expression. It protects only the time value of “hot news“. The dissipation of the value might occur on a scale of seconds, minutes or hours, but the principle is clear.

Information still has it’s own inherent value, the ‘hotness’ of it merely gives one business a competitive edge in the marketplace. Once it is widely known it is not ‘hot’ anymore. The time sensitivity requirement acts as an important limiting factor, a safeguard recognised by the Courts as being necessary back in the 19th century against “manacling science” and restraining competition.

Cases in which there is a time sensitivity element present tend to involve financial sports data, business, weather, entertainment and news, being dynamic in nature. A competitor’s appropriation of that information could be actionable as misappropriation, but any term of protection endures only as long as the information is fresh, so as to permit the recoupment of it’s pecuniary value during a short lead time advantage.

In Gannet Satellite Information Network Inc v Rock Valley Community Press (1994) WL 606171 (N.D. III 1994), the defendant extracted quotations from the plaintiff’s newspaper to publish it’s own newspaper. By the time the defendant did this, the news had lost much of it’s heat, affording the plaintiff the opportunity to reap the rewards from the freshness of it’s news. The misappropriation claim was pre-empted as the news, although it may have still held commercial value, was not time-sensitive. The proprietary interest, drawing on the reasoning of the INS Court, lay not in the facts themselves, rather in the timely distribution of them to the public within the narrow time frame during which they retained their value when spread.

The next significant case involving hot news misappropriation occurred in Morris Communications Corp. V PGA Tour where the court invoked the doctrine to refuse access to the PGA’s system for the gathering of real time golf scores which weren’t yet in the ‘public domain’. Morris Communications, a media company, wanted to publish these scores on the Internet, but could not do so, and after being refused access to the RTSS system sued PGA for engaging in unfairly competitive tactics, stifling the competition in the market for golf scores.

THE LAW IN AUSTRALIA RELATING TO THE PROTECTION OF NEWS AND NEWS HEADLINES

The Federal Court of Australia recently refused copyright protection for news headlines claimed by the the Plaintiff in Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984.

Courts have been reluctant to afford literary copyright to titles, characters and news headlines. However newspaper publishers see the reproduction or abstracting of headlines as theft of their content. Newspaper publishers have tried to obtain copyright protection in their headlines as discrete original literary works under copyright legislation.

Publishers asserting copyright in headlines argue that compiling and arresting headlines involves a high degree of novelty and creativity, and therefore such headlines should qualify as original literary works. To be a literary work, a work has to convey pleasure or afford enjoyment or instruction. It must also be original and to satisfy the test of originality it must be original not just in the sense of originating from an identifiable author rather than copied, but also original in the particular form of expression in which an author conveys ideas or information. This is because copyright is not meant to protect facts or ideas.

The question whether copyright can subsist in newspaper headlines was discussed briefly by a Judge in a Scottish case called Shetland Times Ltd v Wills [1997] FSH 604. The Judge didn’t arrive at a final conclusion as to whether a newspaper headline can be a literary work, but expressed reservations about granting copyright to headlines, especially where they only provide a brief indication of the subject matter of the items they refer to in an article.

Newspaper headlines are similar in nature to titles of a book or other works and titles, slogans and short phrases which have been refused copyright protection. In the case of IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14, the High Court held that no copyright can subsist in a programme titles alone.

The Courts have based their reasons for refusing copyright protection to such works both of the basis that they are too short (see Francis Day & Hunter Ltd v Twentieth Century Fox Corp Ltd (194) AC 112) or alternatively that titles of newspapers, songs, magazines, books, single words and advertising slogans lack sufficient originality to attract copyright protection.

However in the United States news publishers still have available to them the possibility of raising the tort of misappropriation to protect their news stories.

CONSEQUENCES OF THE APPLICATION OF THE TORT OF MISAPPROPRIATION IN THE DISSEMINATION AND CONTROL OF NEWS IN A DIGITAL ERA

In today’s world people are increasingly consuming news differently to the manner in which they did in 1918. People have the choice of reading their news on the internet and via smartphones.

Technology has transformed the speed at which news is being disseminated, organised and received by consumers faced with a diverse range of choices of media outlets and mediums.

Organisations such as AP are licensing their content however in the digital environment the quality of their news is being diluted and degraded by the unauthorised and uncompensated use of it.

The blogger or citizen journalist is unlikely to be affected by the hot news doctrine as neither are in direct competition with such organisations. Bloggers can’t be accurately described as news services. Bloggers and citizen journalist supply important information that many people consider to be news and allow for diversity in news reporting.

Many bloggers and citizen journalists or individuals who just happen to be in the right place at the right time, have fulfilled an important role in making information publicly available which is of potentially great public interest such as human rights violations.

Bloggers may not have the infrastructure to disseminate news on the same scale as an organisation such as AP or Dow Jones & Co. however this does not necessarily mean that they don’t bring a unique perspective to news and add value. Neither do bloggers necessarily fail to attribute sources when citing news breaking headlines derived from such media organisations.

Very often, traditional journalists have been found scouring the internet grabbing information and perspectives of bloggers and citizen journalists. The respect, time and effort a blogger has expended in gathering, analysing and verifying sources isn’t necessarily given by journalists to bloggers.

People only envisaged professional journalists being the source of the news, however that isn’t the world we live in today.

Rival newspapers have used the doctrine to prevent print editions copying from obituaries of web based editions of other newspaper publications. The Judge found that a tort of misappropriation wouldn’t apply as the newspaper subject to the unlawful copying of it’s obituaries wouldn’t ‘die’ or be prevented from publishing it’s obituaries because of the re-use of this information by their rival

It seems conceivable that a case will be litigated in the near future given the aggressive stance media publishers have taken in recent years. This is probably likely to involve a media organisation taking action against a news aggreggator such as Google News or Yahoo news.

It is premature to predict whether the AP and AHN case is likely to lead to a victory for a media publisher. The only thing which is certain is that cases in which a media organisation is situated within New York will have this tort available to them as part of their legal arsenal.

When a Court does have the opportunity to litigate a case it will be decided on the facts and circumstances of the case and as indicated by the motion to dismiss in AP v ANH, the Court will apply the five factors articulated in Motorola v NBA.

The more difficult question is determining how long news will be deemed to be ‘hot’ in a world where there is a constant flow of information and information is transmitted almost instantaneously.

The notion of time sensitivity in relation to data, whether news or sports scores cannot be simplified. It is difficult to speculate what the term time sensitivity will mean and what the temporal value of information will be given in any particular context.

There has been discussion of fixing an objective standard to eliminate any subjective analysis. An objective standard within which no other online news provider can publish news has the distinct advantage that it is predictable but has a fatal disadvantage that it could be both unjustified and excessive.

Fixing a time scale for the commercial value of something like data which by it’s nature is so divergent seems arbitrary. Information is something that doesn’t rise to the level of a being patentable and shouldn’t be rewarded by any kind of monopoly.

By doing so, we are giving protection to facts and ideas as the Feist Court ruled which is proscribed by the US Constitution. This is giving de facto legal protection to facts and ideas which would tend to have a much broader application than protected copyright expression.

The form of protection should be of very short duration otherwise there is a risk of a situation resulting where a myriad of licenses may be needed to write a news story. It is also in the interests of society to have a vibrant and diverse media, which allows freedom of expression of a variety of views, which accommodates a variety of perspectives.

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