International News Service v. Associated Press
|INS v. Associated Press|
|Argued May 2–3, 1918
Decided December 23, 1918
|Full case name||International News Service v. Associated Press|
|Citations||248 U.S. 215 (more)|
|While the information found in AP news was not copyrightable and subject to publici juris, AP has a quasi-property interest during the production of "hot news".|
|Majority||Pitney, joined by White, Day, Van Devanter, McReynolds|
|Concurrence||Holmes, joined by McKenna|
|Clarke took no part in the consideration or decision of the case.|
|Common law copyright; publici juris; U.S. Const. art I § 8 clause 8|
International News Service v. Associated Press, 248 U.S. 215 (1918), is a United States Supreme Court decision that upheld the common law rule that there is no copyright in facts and developed the common law doctrine of misappropriation through the tort of unfair competition. In the case, the court struggled to distinguish between interference with business practices versus interference with intellectual property rights.
Two competing United States news services were in the business of reporting in the US on World War I. Their business hinged on getting fast and accurate reports published. Following unfavorable reporting on British losses by William Randolph Hearst's INS, that news service was barred from using Allied telegraph lines to report news, effectively shutting down their war reporting.
To continue publishing news about the war, International News Service gained access to Associated Press news through bribery, news bulletin boards and early editions of newspapers. INS members would rewrite the news and publish it as their own, without attribution. Although INS newspapers had to wait for AP to post news before going to press, INS newspapers in the west had no such disadvantage relative to their AP counterparts. The AP brought an action seeking to enjoin INS from copying news.
Pitney held that the information found in the AP news was not copyrightable as "the information respecting current events contained in the literary production is not the creation of a writer but is a report of matters that ordinarily are publici juris; it is the history of the day." Instead, Pitney approached the issue from the perspective of unfair competition. He found that there was a quasi-property right in the news as it is "stock in trade to be gathered at the cost of enterprise, organization, skill, labor and money, and to be distributed and sold to those who will pay money for it". Given the "economic value" of the news, a company can have limited proprietary interest in it against a competitor (but not the public) who would attempt to take advantage of the information.
Pitney characterized INS's behavior as misappropriation. Due to the tenuous value of "hot" news, Pitney narrowed the period for which the proprietary right would apply: this doctrine "postpones participation by complainant's competitor in the processes of distribution and reproduction of news that it has not gathered, and only to the extent necessary to prevent that competitor from reaping the fruits of complainant's efforts and expenditure."
Justice Brandeis took issue with the Court's creation of a new proprietary interest in "hot" news and said it was an issue best dealt with by the legislature. His opinion included the following:
|“||The creation or recognition by courts of a new private right may work serious injury to the general public, unless the boundaries of the right are definitely established and wisely guarded. In order to reconcile the new private right with the public interest, it may be necessary to prescribe limitations and rules for its enjoyment; and also to provide administrative machinery for enforcing the rules.||”|
The Second Circuit held that the "hot news" tort was largely preempted by the Copyright Act of 1976 in National Basketball Association v. Motorola, Inc. (1997) and Barclays Capital Inc. v. Theflyonthewall.com, Inc. (2011).
- List of United States Supreme Court cases, volume 248
- Feist v. Rural, holding that "copyright awards originality, not effort"
- Associated Press v. United States, an antitrust Supreme Court case
- Barclays Capital Inc. v. Theflyonthewall.com, Inc.
- Baird, Douglas G. (2005). "The Story of INS v. AP: Property, Natural Monopoly, and the Uneasy Legacy of Concocted Controversy". In Ginsburg, Jane C.; Dreyfuss, Rochelle Cooper. Intellectual Property Stories. Foundation Press. pp. 9–35. ISBN 1-58778-727-X.
- Epstein, Richard A. (1992). "International News Service v. Associated Press: Custom and Law as Sources of Property Rights in News". Virginia Law Review 78 (1): 85–128. doi:10.2307/1073304.
- Ekstrand, Victoria Smith (2005). News Piracy and the Hot News Doctrine: Origins in Law and Implications for the Digital Age. New York: LFB Scholarly Publishing. ISBN 1-59332-075-2.
- Leistner, Matthias (2011). Heath, Christopher; Sanders, Anselm Kamperman, eds. Landmark Intellectual Property Cases and Their Legacy. Kluwer Law International. pp. 33–50. ISBN 978-90-411-3343-4.
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