Just a day after Google and Twitter called the legal concept of "hot news" obsolete, the major news heavyweights have collectively thrown their hat into the ring in support of the nebulous restriction.
The Associated Press, New York Times, Time, Washington Post, Agence France-Presse, Advance Publications, and others submitted their own amicus brief in the ongoing legal case between theflyonthewall.com and Barclays Capital. They aren't taking a side in the dispute, but they do want the ability to tell others not to re-report "their" facts.
According to the brief, the news orgs believe the hot news doctrine provides "limited but vital protection" for those who put elbow grease into publishing the news. They argue that they're the ones spending time and money doing the research on a piece of news, and that they should get full control over who can republish the facts while the news is still considered timely. (Facts generally are not protected by copyright.)
"Unless generalized free-riding on news originators’ efforts is restrained, originators will be unable to recover their costs of newsgathering and publication, the incentive to engage in the news business will be threatened, and the public will ultimately have fewer sources of original news," reads the brief.
It's not easy being the one who puts in all the work so that everyone else can grab the details for free. And, of course, there are many stories that would never get the full attention they deserve without major news outlets putting in that effort. That's the crux of the news orgs' brief—they want to stay in business so that they can keep reporting the news to the public, and they believe the "hot news" doctrine will help them in that effort.
Note that this is not the same as protecting their work from being plagiarized—current copyright law already protects their specific words. Rather, if one of them breaks news about pigs suddenly learning to fly, they don't want a competitor to see the story in an RSS feed, read the post, and immediately rewrite the facts in new language.
Doing this occasionally is one thing, but "hot news" was developed by courts during World War I when this kind of rewriting became a staple practice for some new competitors. It's even worse when it happens with no attribution.
When everyone's a publisher, is "hot news" practical?
Could hot news protection extend to tweets, Facebook posts, blog posts, and more? The news orgs aren't likely to go after people for a tweet that contains few facts, but the door could be open for that kind of "enforcement."
As Google and Twitter noted in their own brief, how would a court choose a time period during which the facts about the latest Times Square bombing couldn't be reported by others? Further, how would the court fairly enforce such a restriction across the entire Internet? It could target one site at a time—like The Fly—but that hardly stops other news sites, blogs, and social media from repeating the facts at lightning speed across the Internet.
It's not just Google and Twitter who think the concept is impractical in today's Internet world: the Electronic Frontier Foundation argues that the hot news doctrine tramples core principles from the First Amendment, and Duke professor and public domain booster James Boyle has spoken out publicly several times against turning it into federal law.
But some news organizations, even new-media savvy ones like the New York Times, still believe that their business needs hot news protection, and they're willing to fight for the idea in court.
Further reading
- US Court of Appeals for the Second District (case number 10-1372) (ecf.ca2.uscourts.gov)
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