Thursday, January 27, 2011
The ‘hot news’ doctrine refers to a cause of action for the misappropriation of time-sensitive factual information that state laws today afford purveyors of news against free riding by a direct competitor. Entirely the offshoot of the Supreme Court’s 1918 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. While the doctrine lay dormant for decades, the last few years have seen a renewed interest in its utility, given the financial difficulties of the newspaper industry. News gatherers of different kinds have begun using the doctrine with increased frequency, in the belief that it creates and protects an ownership interest in news, a right that they might be able to leverage to create a licensing market for the use of news that they collect. This Article argues that this belief misapprehends the basis for the hot news doctrine. As a doctrine that originates 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 news gathering. Recognizing that news gathering involves enormous expenditures on the part of newspapers, it attempts 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. Thus, it attempts to maintain a competitive equilibrium among news gatherers through a gain-based 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 mechanism by which to "reinvent" or "save" newspaper journalism, as some claim it will.