AP v. AHN Case Settled but “Hot News” Doctrine Still Alive

Traditional and digital media collide once again in the form of news dissemination.  Ever heard of the phrase “history repeats itself?”  This saying is demonstrated in Associated Press v. All Headline News Corp., No. 08-cv-323 (Memorandum and Order, Feb 17, 2009) where the court held that the “hot news” doctrine created by the US Supreme Court in 1918 may be applied to digital news distribution.

In Associated Press v. All Headline News Corp., AP brought a copyright infringement suit against All Headline News Corp., a website that redistributes news articles.  AP alleged AHN was redistributing AP articles in their entirety and passing them off as AHN articles.  In addition to copyright infringement, the AP brought a number of other claims, including misappropriation under the “hot news” doctrine, a New York common law doctrine.  The Supreme Court of the United States upheld the “hot news” doctrine in the famous 1918 case International News Service v. Associated Press, 248 U.S. 215 (1918).

On face, this case may appear to simply be a copyright infringement issue…after all we are all taught in grade school that copying another person’s work and passing it off as your own is wrong (in college we find out its illegal).  The impact of this case’s outcome is that IP rights will either be assigned to AP’s reporting when in digital format or they will not.  Digital format can mean any online content distribution from the daily blogger to large websites like AHN.  This does NOT mean that the content can no longer be placed online by third parties, but under AP’s official policy, everyone from bloggers (like me) to Drudge himself will need permission from AP before posting their content.  Permission usually also means that the person posting content must pay AP for the content.

Those of us in the news industry know that AP does not usually enforce their “official policy” but they do require that AP receives credit/acknowledgement when their articles are posted by third parties.

So now that we understand how a case like this can impact our use and consumption of online materials…how was the case decided?  It settled!  However, before the parties settled, the court found in favor of AP on AHN’s motion to dismiss stating that AP had a claim under the “hot news” doctrine following the Second Circuit’s holding in National Basketball Ass’n v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997), that a valid claim for misappropriation under the “hot news doctrine” lies where a plaintiff pleads the following: 

(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; and

(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.

So what…no court decision means no precedence, right?  WRONG, this case demonstrates that a New York District court will allow news creators, like AP to bring claims under the “hot news” doctrine; that the District Courts of New York believe that this doctrine CAN be applied to digital news; and that AP can and will go after those they consider “plagerisers” of their content using this doctrine as their sword.

So where does this leave us?  In 1918 AP argued that their content should be protected under IP laws because investigative journalism is expensive, there are large upfront costs to sending journalists all over the world to collect information and report stories.  If those stories can be taken by any media outlet and distributed without compensating AP, then there is no incentive for AP to invest in investigative journalism, society does not receive the benefits of global news.

On the flip side, are policies like this even enforceable?  How can AP really police every blog site, news site, newspapers, ect.?  Truth is that they cannot, which leaves them with an IP right that not even the organization can enforce.  Further, do policies like this hamper our abilities on the semantic web to talk about and distribute news?  Will the information debate become as confounded as the digital music debate?

Personally I think that AHN was wrong to take AP’s stories verbatim and pass them off as their own, AP deserved the credit for those stories, even though they were posted on AHN’s site.  However, I would not like to see AP become extremely closed with their information and overly enforce their reporting by not allowing anyone to site or use their articles without express permission from AP.  AP could very well decide that the only way we can get their news is to go to their website. Do we then get into antitrust issues?

Its all extremely complicated and affects our daily lives.  One case (that settled) out of New York could change the way we consume news online.  This is why it is so important to understand policies being created from our legislatures, courts, and Congress in regards to social media and the Internet.

What are your thoughts on this case and how we consume digital news?

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