A bunch of sites have been discussing the Associated Press's lawsuit against All Headline News, but I wanted to spend some time reading up on the case before commenting -- and the more I read, the more troubling it became. A standard tenet of copyright law is that "you can't copyright facts." However, it appears there are some exceptions to that, in practice -- which is the basis of the AP's lawsuit. Specifically, the AP is reaching back to some rulings from nearly 100 years ago, noting that "hot news" can be treated as property
. Now, technically, this is outside
of copyright -- but for all intents and purposes, it effectively creates a copyright on "hot news" using an amazingly broad five factor test
- a plaintiff generates or gathers information at a cost;
- the information is time-sensitive;
- a defendant's use of the information constitutes free riding on the plaintiff's efforts;
- the defendant is in direct competition with a product or service offered by the plaintiffs;
- 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.
In practice, that would effectively rule out any
reporting based on a scoop by another news organization. That's obviously a ridiculous outcome -- but if the courts continue to recognize a "hot news" right, then that could be where things lead. And, given the AP's recent attempts to push to control as much of its content as possible, don't think for a second that it wouldn't look to use this rule even more broadly. The eventual implications
of more widespread use of "hot news" rights could be massively damaging, especially in an age where news is spread through online sources, with lots of folks spreading the news themselves. For example, imagine seeing a breaking story over the AP wire and mentioning it on Twitter. That fourth prong would have to be proven (are you in direct competition? it might depend on who you are...), but think of all the ridiculous lawsuits that would result.
The "hot news" exception is only recognized in a few states -- but one of them is New York, where the AP filed this lawsuit. One would hope that courts would eventually recognize that such a right would violate the concept of copyrighting of facts not being constitutional, but we may be in for a long series of legal fights before that's actually decided.