Patterico's Pontifications

2/22/2009

AP: “Hot News” Doctrine for Me, But Not for Thee

Filed under: General — Patterico @ 8:29 pm

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 information was time-sensitive. I posted the letter from Ms. Tiffany on June 16, 2008. The AP story reproduced the information the same day. At the time, the controversy was still a hot topic.

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.

37 Responses to “AP: “Hot News” Doctrine for Me, But Not for Thee”

  1. So the Second Circuit is saying (read that aloud for the alliteration) that if CBS engages in their usual checkbook journalism some blogger better not swoop in and report on it between the time that the interview takes place and — after four days and three nights of Katie Couric teasing it — the interview is finally aired on television?

    JVW (bff0a4)

  2. The doctrine was always of very dubious validity and ought to be put down for good. Copyright is about protecting original expression, not ideas and not information.

    SPQR (26be8b)

  3. You didn’t address v:

    “(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.”

    imdw (8bb588)

  4. imdw, this “doctrine” creates topics of news that are excluded from the public domain. That’s the antithesis of what copyright is about. This “hot news” doctrine is no more valid than the old “sweat of the brow” doctrine that it is just a poorly disguised varient of.

    SPQR (26be8b)

  5. “imdw, this “doctrine” creates topics of news that are excluded from the public domain”

    Only for its time sensitivity. I understand the doctrine. It wouldn’t apply to patterico because of (v). Not to mention his stuff wasn’t time sensitive: the value of the letter is the same if it’s published one day or another.

    imdw (a81897)

  6. Speaking of hot news (as in, “down in flames”) the Philadelphia Inquirer and the Philadelphia Daily News have just filed for bankruptcy.

    Official Internet Data Office (66caf1)

  7. You didn’t address v:

    5th paragraph from the bottom.

    Patterico (cc3b34)

  8. “5th paragraph from the bottom.”

    That’s element (iii), not element (v). How are your incentives?

    imdw (de7003)

  9. “5th paragraph from the bottom.”

    That’s element (iii), not element (v). How are your incentives? Would you do it all again?

    Also, didn’t they get the letter from her? If so, it looks like they replicated your efforts, rather than free ride on them. So there goes element (iii).

    imdw (70833b)

  10. 4th para from the bottom. If one’s work product is appropriated and disseminated widely for a competitor’s benefit, it disincentivizes the production of such work product.

    Not to mention his stuff wasn’t time sensitive: the value of the letter is the same if it’s published one day or another.

    No. Once the news is broken, the clock starts on the value of the news. It is less valuable commercially when it’s a month old than it is when it’s less than a day old. Hence “Hot news”. Further, the work was time sensitive as it related to an issue currently making news. If Patterico first published that post today, do you think he’d be seeing any traffic on it? Do you think that AP would filch it? No, because it’d be old news. Nobody cares today. It doesn’t matter today, but it did 8 months ago.

    Pablo (99243e)

  11. the best way to bury the doctrine would be to sue the AP. They would be put in the position of advancing and defending against the doctrine at the same time, leading to potentially insteresting estoppel arguments.

    luci (9c2280)

  12. “That’s element (iii), not element (v).”

    Please read it again.

    This time read first and comment second.

    Count from the bottom. The bottom paragraph is 1. The one above it is number 2.

    When you get to 5, read the paragraph. The WHOLE paragraph.

    Patterico (d01c98)

  13. “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.”

    You later said: “They’re waaayy more successful — but I’m trying!”

    It looks like this situation doesn’t meet (v), as the AP hasn’t “reduce[d] the incentive to produce the product or service that its existence or quality would be substantially threatened.”

    “If one’s work product is appropriated and disseminated widely for a competitor’s benefit, it disincentivizes the production of such work product.”

    Sure but that’s conclusory and makes it such that a competitor can’t report on something once someone breaks it. That’s not quite right. I also think you read time sensitive too broadly — to make the doctrine problematic:

    “It doesn’t matter today, but it did 8 months ago.”

    A narrow reading would limit this to things like real-time market feeds or real-time sports feeds. If I just steal your feed I completely remove the reason for you making it. But if I delay it and still leave a market for your real-time feed then the time-sensitivity problem is gone.

    But yeah patterico. You think you gotta a case have a fundraiser and sue. I’d like to see you describe your damages per (v).

    imdw (fa950f)

  14. But yeah patterico. You think you gotta a case have a fundraiser and sue.

    From my post:

    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. . . . So I won’t be filing suit . . .

    Learn to read.

    Patterico (cc3b34)

  15. We’ve given up wishing imdw could read.

    SPQR (26be8b)

  16. Permit me to speak for all you fans when I say that I am glad that the AP hasn’t so “reduce[d] the incentive to produce the product or service that its existence or quality would be substantially threatened.”

    imdw (05d41e)

  17. No, just speak for yourself, imdw. I’d rather you didn’t speak for me when you’re so inclined to screw it up.

    Pablo (99243e)

  18. Well maybe you’re not as glad as me. Sorry then.

    imdw (de7003)

  19. Here’s how you could have avoided sounding like someone with a reading disability, imdw. You could have:

    1. Acknowledged that I addressed the issue,

    2. Acknowledged that I wasn’t planning to file suit,

    3. Acknowledged that the pure legality of a potential lawsuit that I said I’m never going to bring isn’t the point of the post; the AP’s hypocritical approach to such matters is, AND

    4. Argued that the case for fulfilling element #5 is rather weak.

    Instead, you repeatedly and falsely asserted that I didn’t address element 5, when I plainly did; you seemed to think I was really contemplating a lawsuit, when I said I’m not; and you showed no sign of understanding the real point of the post.

    Other than that, great series of comments!

    Patterico (cc3b34)

  20. “Instead, you repeatedly and falsely asserted that I didn’t address element 5, when I plainly did;”

    You addressed (iii), not (v). You said they were free riding and showed how. That’s (iii), not (v). Depends on the facts here too: if they did go and get the letter from her and call her on their own — then they’re doing the efforts anyone else should do, not free-riding. If they just copied the letter from your site, then they’d be free-riding.

    (v) is about what it does to your incentives, not whether they’re free riding. Pablo sort of gets that, but he goes about it in a conclusory fashion. You don’t address the incentives, except to say that you’re “trying.” Which makes me think you’re not giving up.

    Funny right? How there’s 5 elements and you address them in 4 paragraphs with nice topic sentences on each element (first one: “This information cost me time to obtain.”). And then you point to how the third one is about element 5.

    Basically the point I’m making is that the ‘hot news’ doctrine isn’t so broad as to cover what happened to you. So that it isn’t so problematic as some people think it is.

    imdw (3a173c)

  21. “Instead, you repeatedly and falsely asserted that I didn’t address element 5, when I plainly did;”

    Right. In the third paragraph of your 4 paragraphs addressing the (oops) 5 elements. Very clever. Element #5 is about the effect on incentives, not whether there was free riding.

    You latter addressed that you were trying, so maybe your incentives aren’t all wrong.

    Pablo somewhat got this point, but he goes about it in a conclusory fashion. Me, I think your incentives are fine.

    The whole point? The hot news doctrine isn’t broad enough to cover what happened to you and is therefore not as broad as some claim it is — not as bad as some make it out to be.

    imdw (c5488f)

  22. imdw so reminds me of Steff.

    daleyrocks (5d22c0)

  23. You addressed (iii), not (v). . . . (v) is about what it does to your incentives, not whether they’re free riding

    Jumpin’ Fuckin’ Jesus Christ.

    I’m going to take a page from Paul, a (former?) commenter here, and repeat something several times — and toss in some profanity — to see if I can somehow beat this into that thick fucking skull of yours.

    “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.”

    “and such second-day stories could reduce the incentive to get scoops”

    “and such second-day stories could reduce the incentive to get scoops

    “and such second-day stories could reduce the incentive to get scoops

    THE INCENTIVE.

    Funny right? How there’s 5 elements and you address them in 4 paragraphs with nice topic sentences on each element (first one: “This information cost me time to obtain.”). And then you point to how the third one is about element 5.

    Funny? Hi-fuckin’-larious. See, I didn’t do a fifth topic sentence because I had ALREADY COVERED THE FIFTH POINT. With a quote that dealt with INCENTIVES.

    “”and such second-day stories could reduce THE INCENTIVE to get scoops

    THE INCENTIVE. Get it YET?

    Now, you know what? You can disagree with the argument. But if you’re still contending that I didn’t even address the point, after I have showed you again and again and again and again and again how I did — then you have to be the dumbest fucking person I have ever seen on this board.

    Have a nice day.

    Patterico (cc3b34)

  24. See, imdw, if you’d fucking listen to what I’m saying the first time around — give me some credit for not being stupid, and consider the possibility that I am accurately telling you that I already covered the topic in question — I wouldn’t have to get so aggravated.

    In fact, I’m really starting to wonder if you’re doing this just to aggravate me. Because, can anyone really be that thick? Really??

    Patterico (cc3b34)

  25. Patterico,
    Because, can anyone really be that thick? Really??

    That’s the eternal problem on blogs, isn’t it? Some people really are that stupid, others just pretend to be. Distinguishing between the two isn’t always easy. At some point, you have to just give up and move onto more productive uses of your time.

    Here’s an example Mike K. will appreciate: In my day job, a woman was trying to get me to write about her alleged medical discovery. So I asked her where her research was published. It wasn’t; this was just her own observation.

    She kept calling. I explained I would only consider writing about something accepted in a peer-reviewed medical journal. Then she asked me how to go about getting published in a peer-reviewed journal.

    That’s when I called an end to the conversation. Life is too short to waste on stupid people.

    Brother Bradley J. Fikes, C.O.R. (0ea407)

  26. ““”and such second-day stories could reduce THE INCENTIVE to get scoops””

    Keep going… ‘that it’s existence or quality is substantially threatened.’ Because it doesn’t.

    So it’s ok. We get the result we wanted: hot news don’t apply to you and you keep blogging.

    imdw (de7003)

  27. And apropos of my post’s last sentence . . .

    Brother Bradley J. Fikes, C.O.R. (0ea407)

  28. Keep going… ‘that it’s existence or quality is substantially threatened.’ Because it doesn’t.

    Yes. Your point is that you disagree with the argument, not that I didn’t address it.

    *&^()*^*%&^$+*^%$

    Patterico (cc3b34)

  29. Comment by Patterico — 2/24/2009 @ 6:59 am

    …and you criticize the way I say some things?

    Tsk….Tsk….Tsk!

    (giggles)

    AD - RtR/OS (8de25e)

  30. Here’s how you could have avoided sounding like someone with a reading disability, imdw.

    Or, you could simply reevaluate your deep commitment to contrarianism.

    Pablo (99243e)

  31. imdw,

    Why didn’t any of your comments address the alleged failures in my analysis?

    You never addressed them anywhere.

    In none of your comments was the argument even made.

    Patterico (cc3b34)

  32. Heh. That’s fun. I can see why he does it.

    Patterico (cc3b34)

  33. Sure, that’s why all the legacy media are failing: bad people are stealing their hot news.

    Uh-huh.

    Patricia (89cb84)

  34. Patterico on the Hot News Doctrine…

    and The Associated Press.

    I agree that the hot news misappropriation tort (described …

    The Volokh Conspiracy (fa8fba)

  35. Patterico:

    I presume AP is seeking an injunction against AHN (determining damages would be very difficult).

    Injunction is an equitable remedy. In equity the petitioner must have “clean hands” in order to prevail.

    Why not simply forward your experiences with AP to the counsel for AHN. The discovery alone would be vastly amusing.

    En Revanche (b25592)

  36. The problem with the “hot news” doctrine is not its breadth but that it protects something other than expression itself – by excluding the creation by others of works on a topic – and so is illegitimate. As illegitimate as the whole obsolete “sweat of the brow” basis for protection.

    SPQR (26be8b)

  37. [...] tables were turned, sue New Media for violating unconstitutional “hot news” rules that impinge on fair use, and fail to make corrections requested by [...]

    Patterico’s Pontifications » AP Editor: We Must Listen to Bloggers . . . Too Bad Our Organization Treats Them Like Dog Poop (e4ab32)


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