The Washington Post‘s TechCrunch reports:
A case between the Associated Press and All Headline News is moving forward based on a 90-year-old legal doctrine which may no longer be applicable in the Internet age. A federal judge ruled that the AP can sue AHN for stealing its “hot news.”
The piece relies heavily on an excellent post at a blog called The Prior Art. The post pulls together the relevant briefs and the court decision in the case, and explains:
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.
Personally, I can’t see how all five of these don’t apply to any news organization that’s writing a story that follows a “scoop” by a competitor.
If courts are seriously going to apply this doctrine, it threatens traditional understandings of fair use and puts a chill on bloggers’ freedom of expression.
What’s more, the AP apparently doesn’t feel bound by this doctrine. Because as it turns out, I have a pretty good argument that the AP has stolen my “hot news” on more than one occasion.
Last year, the AP republished portions of a letter posted on my site from Alex Kozinski’s wife.
This information cost me time to obtain. I wrote Judge Kozinski an e-mail (passed on to his wife) asking for a reaction. Then I spent considerable time of the phone with Ms. Tiffany — talking about the controversy generally, her reaction to it, and whether she would be willing to write something about it.
The AP constituted free riding on my efforts in obtaining the e-mail from Ms. Tiffany. As the blogger at The Prior Art noted, “it could still be thought of as ‘free-riding’ if the second news outlet is just publishing a do-over of the themes, sources, ideas, in the first article—and such second-day stories could reduce the incentive to get scoops.” Other than placing a phone call to verify Ms. Tiffany’s identity, the AP did little but piggy-back off the contents of Ms. Tiffany’s letter.
Is the AP in direct competition with me? Arguably so. We’re both trying to get eyeballs for our respective Internet content. They’re waaayy more successful — but I’m trying!
A similar thing happened in April 2006, when I reported on the sock-puppetry of L.A. Times business columnist Michael Hiltzik. My report took far more effort than my post about Marcy Tiffany’s e-mail — and was certainly considered news by outlets across the nation. The AP piggybacked on my efforts within a day.
I’d ask for a lawyer to help me file a couple of lawsuits here — except that I happen to believe that the “hot news” doctrine is crap. The AP may well have a valid copyright claim in the case discussed above, but this “hot news” concept flies directly in the face of fair use. If a sane court ever got hold of the issue, I assume it would be resolved properly.
So I won’t be filing suit — but I will be savoring the irony. It’s yet another example of the AP failing to live by the rules it sets for others.