‘Hot news’ offers lukewarm protection for news media

Can somebody actually “own” news? That’s not so far-fetched. After all, it is customary to regard certain forms of expression—pictures, poems, novels—as belonging to their creators, who then charge for its use. Disney Co. copyrights Mickey Mouse as its intellectual property; lyricists get paid when their songs are recorded.

The idea is to make sure producers of creative work are rewarded with exclusive rights to what they produce, at least for a while.

But news? That’s a tough question. News is indeed an intellectual creation, but it has special characteristics that make it hard to cash in on.

For starters, it’s built from facts, which are available for anybody to find or confirm, and which remain temptingly available even after they’re used in a story. So they’re hard to own. Beyond that, the value of news depends on its freshness, so although producers can sell it, they can’t sell it for very long. Anyone who has even heard the news thereby owns the news, and can relate it to other people, giving it away for free.

So others can appropriate it, repackage it, and distribute it for their own gain, without running up anything like the costs of gathering it in the first place.

And, as a matter of social benefit, you wouldn’t want news to be tightly controlled by its originators. Its real value requires it to be spread quickly and easily, so that it provokes further inquiries and plays a vibrant role in a continuing discourse. When the keepers of J.D. Salinger’s literary estate blocked publication of a book by a writer who imagined the adulthood of Salinger’s greatest creation, teenager Holden Caulfield, their action was regrettable. But it would be intolerable to have a news organization barred from chasing an important story because it hadn’t paid royalties to the site that broke the original. Using intellectual property rights in that way would harm everybody.

But in the Internet age, news originators have a big problem. Within minutes of its first appearance even an exclusive news story appears on dozens of sites that did nothing to produce it. Thanks to the speed and efficiency of search engines, the vast majority of readers will catch up with the story somewhere else, and the originating news organization won’t profit from its enterprise through higher audience numbers on its own site.

That’s why it’s important that earlier this month a financial news website called Briefing.com paid an undisclosed sum to settle a suit brought by Dow Jones & Co., the worldwide business news powerhouse. Dow Jones sued in April to stop the Chicago-based website from helping itself to breaking news off the Dow newswire. During two weeks in February, Briefing.com allegedly copied 72 headlines and parts of 107 articles within minutes of their appearance on the Dow wire, according to a Reuters report.

Now, what’s most notable about this case is that Dow Jones didn’t just allege copyright infringement. Copyright prohibits stealing somebody else’s words. It protects expression, not ideas. If Dow broke a story, copyright alone wouldn’t stop another website from rewriting that story and posting it.

But Dow sued under another principle as well, the notion of “hot news.” This is a somewhat vague doctrine that dates from a 1918 Supreme Court decision upholding a news service’s right to claim breaking news as “quasi property,” according to an analysis in the University of Minnesota’s Silha Bulletin. That means the authors who broke the news could claim an exclusive right to the information itself, at least for a time.

The doctrine has now been dusted off and applied to other cases where content creators are trying to repel “free riders.” In one, some big investment firms won a suit against a financial news website, Theflyonthewall.com, that posted stock analyses intended for the exclusive use of their clients.  The judge applied the “hot news” doctrine, “to protect costly efforts to gather commercially valuable, time-sensitive information that would otherwise be unprotected by law,” and ordered the website to delay its postings so the intended audience could have a period of exclusive access.

The battle over “hot news” pits legacy news organizations against the free-flowing Internet culture of promiscuous information sharing. It’s tempting to glance at the tens of thousands of hits Google or Yahoo returns on a search query and conclude that any claim to exclusivity is nuts, since news is organically originating from an exploding number of independent sites. Only when you look more closely do you realize how many of those hits track back to a tiny number of originating sites, and you begin to realize that the richness and diversity of factual information sources may be one of the Internet’s more artful illusions.

“Hot news” seems clumsy and unenforceable. But the digital march toward a world of discourse that consists of more and more strident opinions about fewer and fewer independently verified facts may be even less appealing.


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