That's My Catastrophe: The Concept of "Hot News"

Can a news organization assert ownership over -- well -- the news? This interesting question landed on our desk recently. Judge Kevin Castel of the Southern District, in The Associated Press v. All Headline News Corp., 08 Civ. 323 reached back to a 1919 Supreme Court decision to find that the Associated Press ("AP") has a property right to "hot news" that it distributes through its wire service.

All Headline News had essentially created a news service by copying news reports filed by AP reporters and editing them for its own use. The AP sued All Headline, relying on several legal theories, including misappropriation.

Misappropriation of "hot news" was first recognized as a federal common law claim in 1919. International News Service v. Associated Press, 248 U.S. 215 (1919). The Supreme Court was concerned that the unfettered ability to copy the work of another news gathering agency would lead to the end of news gathering by rendering such efforts essentially profitless. By establishing a quasi property right to "hot news," the Court sought to allow news gatherers to enjoy the benefit of their work.

This may sound strange. After all, news is news. How can anyone assert an ownership right to it. Think about patents for drug companies. Since the drug companies spend millions of dollars to create drug products, patent law provides the drug companies with a limited monopoly, to allow them to recoup their up front investment in the new drug. That's the theory at any rate. The analogy holds for news organizations as well. AP spends millions of dollars to report the news. That shouldn't give them a monopoly, of course, but does anybody think it's right that a company like All Headline News should be allowed to simply copy the AP's work without committing the resources to do the reporting.