Document Type

Article

Publication Date

2011

Abstract

The “hot news” doctrine refers to a cause of action for the misappropriation of time-sensitive factual information that state laws afford purveyors of news against free riding by a direct competitor. Entirely the offshoot of the Supreme Court’s decision in International News Service v. Associated Press, the doctrine enables an information gatherer to prevent a competitor from free riding on its efforts at collecting and distributing timely information. Over the last few years, newsgatherers of different kinds have begun using the doctrine with increased frequency, believing it to create and protect an ownership interest in news. This Article argues that this belief misapprehends the real basis for the hot news doctrine and its unique analytical structure. Originating in the synthesis of two different areas of the common law, unfair competition and unjust enrichment, hot news is concerned principally with solving a collective action problem in the market for newsgathering. Given the enormous expenditures that newsgathering entails, its sustainability as a practice depends on newspapers cooperating with each other in different ways. In recognition of this, hot news operates as a mechanism by which to preserve the incentives of individual competitors to enter into cooperative newsgathering and sharing arrangements that raise their individual and collective profitability, while simultaneously maintaining the common pool (i.e., public domain) nature of factual news. It thus attempts to maintain a competitive equilibrium among newsgatherers through a gainbased liability framework and, in the process, emphasizes a very different distributive baseline from that inherent in the idea of property in news. Appreciating this difference and its significance is crucial to the doctrine’s continuing survival and sheds light on its inherent unsuitability as a new source of revenue for the newspaper industry.

Disciplines

Common Law | Intellectual Property Law | Law

Comments

This article originally appeared in 111 Colum. L. Rev. 419 (2011). Reprinted by permission.

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