Hot News: Who Owns Facts?

‘Hot news’ is one of the bricks that the old mainline media companies are using to build a wall to keep out the future, although it tuns out to be an old brick:

James Boyle, Hot news: The next bad thing

Entrepreneurs and venture capitalists spend a lot of time trying to figure out the next big thing; the new trend, product or web service that will take us by storm. Intellectual property scholars are a little different. We spend a lot of time wondering about the next bad thing.

What will be the latest empirically ungrounded expansion of rights, conferring monopoly rents on market incumbents with scant regard to unintended consequences?

Recent hearings on the future of the news industry at the US Federal Trade Commission (full disclosure: I was an invited participant) signalled the arrival of a new candidate. Newspapers are lobbying for a new federal intellectual property right over “hot news.” European equivalents have also been proposed.

Sadly, the “hot news” right is not as racy as it sounds. It does not offer legal protection for scantily clad celebrities. This is a legal right that extends far beyond copyright law to cover the facts of the news themselves; if I break the story, the hot news right allows me to stop competitors from repeating the facts – at least for as long as the story has immediate currency.

So the new right would have no effect on the real problem newspapers face. And it would give them almost no protection that they do not already have either through law or technology. What would it do? It would cast a pall of fear over free speech. Is my blog or twitter feed allowed to say that there has been an earthquake or that some political scandal has erupted? Or must I buy a license to say so? After all, in the new world bloggers are “competitors” as news sources.

In fact, the right would produce all kinds of effects the newspapers have not thought about. They are assuming that this new right will only be wielded by them. Not so. Think of political activists who break a story – for example the young conservative filmmakers who produced devastating information on the operation of the organization ACORN. They are a news source. They might think it was a great idea selectively to decide which news organizations got to report that story, at least as long as it was “hot.” Does that sound attractive? I think not. And then think of the difficulties of proof, the possibility of chilling of speech by wrongly claiming to be its source. Implementation would be a nightmare.

I confess that I was unaware of the history of ‘hot news’; a concept that Louis Brandeis argued against almost 100 years ago to no avail. The Supreme court ceded to news services the ‘quasi property right’ of hot news, blocking others from reporting facts initial posted by one news service for some limited period of time (see Wikipedia), based on the notion of misappropriation being a sort of unfair competition. Brandeis dissented, famously, writing

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.

Nate Anderson has been following the current day activities of news organizations like the AP, and recent hearings at the Federal Trade Commission.

Nate Anderson, Is permission needed to retweet hot news?

We’ve written extensively about “hot news” in the past. The doctrine has never gone away, though it has always been quite limited (New York state is one of the few places it is regularly recognized by the courts). It sounds like something archaic, but think for a moment how it might apply to bloggers, aggregators, Facebook posters, and even Twitter users today. If you think this stuff doesn’t matter to the news business, then you haven’t been paying attention. This isn’t about copyright; it’s about control of the facts.

Laura Malone again:

[Hot news] protects people. It protects the news organizations who are sending their reporters out at a cost, and that cost is not just dollars and cents, that cost is also lives, that there are people who are sitting in their homes at their computers, reading what the AP has reported, at a cost, and retyping it, sending it, and reselling it, so there’s the free writing that happens. There are direct competitors—the Associated Press losing its customers because they were able to purchase it at a lower cost from the person who sat in his living room and retyped the stories and stripped the Associated Press’ credit off it… We’re gonna put fewer reporters out in the field. We’re gonna have fewer people and fewer bureaus out there. We’re gonna have fewer people to read those three Chilean reports, those three Chilean reports that were gotten by people who were there on the site doing original sourcing and doing original reporting. So, I don’t think it’s just a footnote, though I do put it in my copyright-infringement letters, as well. I rely very heavily on hot news misappropriation.

This is a fascinating response. Malone is reacting to a comment from Harvard prof Yochai Benkler, who pointed out that having any sort of right over the facts, even for limited times, posed problems for everyone. 

“This beguiling idea of permissions everywhere—permissions for whom?” he said. “When a New York Times reporter who knows Spanish reads three newspapers from Chile and puts together insight about what is going on in the earthquake and how people think—permissions? When any reporter sits, combines what they hear with seven other reports they’ve listened to—permissions? You want to live in a permissions system that facts are permitted? It is—that is exactly the point about the fact-expression dichotomy. We exist in a world where facts are, as Justice Brandeis put it, in the same case…. Facts, as Louis Brandeis said, should be free as the air to common use. We do not have a permissions system for breathing.”

In defending her organization’s right to control facts, Malone argued that “original reporting” would dry up without a “hot news” right. But she then gives an example of such “original” reporting a newspaper who sends a reporter to Chile to read Spanish-language newspapers… which is exactly Benkler’s point. The AP wouldn’t be allowed to rewrite those original accounts without permission or without waiting some indefinite time period; the “hot news” right it wants could also extend to those Chilean papers.

Claiming that facts — like the Watergate break-in, or the results of investigative journalism — is something like claiming the New World in the name of Queen Isabella of Spain. The idea that the reporter’s paper (not the reporter, note) owns the facts, exclusively, for even a few hours, smacks of some sort of imperialism.

Those organizations that are most well-established — who have the largest organizations, and the deepest pocketbooks — are the ones with the most to gain from a more general application of ‘hot news’. The smaller, less well endowed organizations would be blocked from participating in breaking news of this sort, and would in effect be a second class of actor in the marketplace of news.

We have to ask ourselves what is the societal benefit if we are to grant this right. Does it benefit people generally, or just a class of business people? My sense is that it would be harmful, and dangerous, and we should fight against it.

Even the smallest concession to the idea that facts can be owned — that people or organizations cannot print facts without authorization — is perhaps the start of the end of free speech, and the opening for an capitalist tyranny.