Communications Lawyer: Saving Journalism with Copyright Reform and the Doctrine of Hot News
Bruce Sanford, head of the firm's national Media practice, Washington, D.C., partner Bruce Brown and associate Laurie Babinski co-authored an article, "Saving Journalism with Copyright Reform and the Doctrine of Hot News," which was published in the December 2009 edition of Communications Lawyer, a publication of the American Bar Association's Forum on Communications Law.
The article focuses on two of the frequently proposed solutions—hot news and copyright reform—that have been offered to "as ways to fix the problem of news aggregators and free-riders who monetize original content created by others and pocket the profit."
The authors detail the history of the 20-year-old case which is "standing in the way of vigorous copyright protection in the online world," Feist Publications, Inc. v. Rural Telephone Service Co. Inc. "As a result of the Internet and other electronic media, only now are publishers experiencing the full impact of Feist because of the ease with which aggregators can tap the value out of news websites simply by linking to them, all the while drawing advertising dollars away to their own sites. While 'sweat of the brow' protection has been recognized by some courts since at least the 1920s, Feist set the theory back—at least under current copyright law."
"Another proposed solution that appears to be gaining traction is the doctrine of hot news misappropriation, which was established in the 1918 case International News Service v. Associated Press. Hot news has the potential to protect against types of content theft that copyright laws have struggled to cover—the theft of factual information rather than words or expressions," continue the authors. However, Sanford, Brown and Babinski do note that hot news "suffers from a more limited reach."
"The question becomes how to expand the applicability of the hot news doctrine to ensure that all content originators . . . have a remedy against those who pilfer content for their own financial gain," state the authors. They go on to outline the advantages and drawbacks of pushing for state courts to recognize the cause of action for their common law. They suggest that the "alternative to a slow methodical common law approach is for Congress to federalize the doctrine of hot news appropriation. It is no secret that Congress has been openly looking for ways to save journalism, and codifying the hot news doctrine may provide one answer."
After detailing the advantages and benefits of a federal hot news statute, Sanford, Brown and Babinski conclude: "For media companies to rally behind any one theory will require in-depth economic analysis of the effects of free riding on the news industry, something media companies such as the AP and start-ups such as Attributor have been studying over the last year. Media companies have a stronger hand to play if they bring empirical support to back up claims that aggregators and free riders are contributing to the economic demise of American journalism."