International News Service v. Associated Press
Encyclopedia
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.
. 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.
's writing for the majority. A vigorous dissent was given by Justice Louis D. Brandeis.
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:
in National Basketball Association v. Motorola, Inc.
(1997) and Barclays Capital Inc. v. Theflyonthewall.com, Inc. (2011).
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1918), is a United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
decision that upheld the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
rule that there is no copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
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
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
rights.
Background
Two competing United States news services were in the business of reporting in the US on World War IWorld War I
World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918...
. Their business hinged on getting fast and accurate reports published. Following unfavorable reporting on British losses by William Randolph Hearst
William Randolph Hearst
William Randolph Hearst was an American business magnate and leading newspaper publisher. Hearst entered the publishing business in 1887, after taking control of The San Francisco Examiner from his father...
'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
International News Service
International News Service was a U.S.-based news agency founded by newspaper publisher William Randolph Hearst in 1909.Established two years after the Scripps family founded the United Press Association, INS scrapped among the newswires...
gained access to Associated Press
Associated Press
The Associated Press is an American news agency. The AP is a cooperative owned by its contributing newspapers, radio and television stations in the United States, which both contribute stories to the AP and use material written by its staff journalists...
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.
Ruling
The Court held in favor of the AP, with Justice Mahlon PitneyMahlon Pitney
Mahlon Pitney was an American jurist and Republican Party politician from New Jersey, who served in the United States Congress and as an Associate Justice of the United States Supreme Court.-Biography:...
's writing for the majority. A vigorous dissent was given by Justice Louis D. Brandeis.
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
Publici juris
Publici juris is a legal Latin term, approximately translating to English as "of public right". An example is water in the sea.Many times referred to in discussion of property rights in law....
; 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
Quasi-property
Quasi-property is a legal concept, in which some rights similar to ownership may accrue to a party who does an act which benefits society as a whole. Black's Law Dictionary defines "quasi" as being "almost" or "resembling" - but not actually the same as the suffix item...
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
Misappropriation
In law, misappropriation is the intentional, illegal use of the property or funds of another person for one's own use or other unauthorized purpose, particularly by a public official, a trustee of a trust, an executor or administrator of a dead person's estate or by any person with a responsibility...
. 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:
Aftermath
The Second Circuit held that the "hot news" tort was largely preempted by the Copyright Act of 1976Copyright Act of 1976
The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions...
in National Basketball Association v. Motorola, Inc.
National Basketball Association v. Motorola, Inc.
National Basketball Association v. Motorola, 105 F.3d 841 is a United States Court of Appeals for the Second Circuit case in which the National Basketball Association purported that Motorola and STATS infringed the NBA's copyright on the broadcast of games and misappropriated the data presented...
(1997) and Barclays Capital Inc. v. Theflyonthewall.com, Inc. (2011).