Free for a Fee

A New York federal judge ruled Tuesday that The Associated Press can sue its competitors not merely for copyright infringement, but for a “quasi property” right in the news known as the “hot news” doctrine. See the AP’s own coverage.

Well, let it not be said that I fell down on the job when “hot news” crossed my beat. I took a look at both sides’ motions and the judge’s ruling to learn more about the case. The doctrine raises some questions for me about journalistic practice and ethics. And, it has some interesting history to boot.

According to 2nd Circuit law quoted in the order in this case [PDF], a “hot news” misappropriation claim is viable when:

(i) a plaintiff generates or gathers information at a cost;

(ii) the information is time-sensitive;

(iii) a defendant’s use of the information constitutes free riding on the plaintiff’s efforts;

(iv) the defendant is in direct competition with a product or service offered by the plaintiffs;

(v) 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.

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