copyright questionDear Dr. ©:

In old movies, the newsboys (newsyoungpersons now?) are always standing in the street (don’t their parents know that they could be hit by a horsecart?) yelling, “Extree! Extree! Read All About It!” and waving some yellow rag in the air.  I remember hearing that facts in news stories can’t be copyrighted, but that some news is protected by the law.  On occasion, I read a news article on the Internet and I’d like others in my company to know about it.  I could just forward the link, but then they’d have to click on it, and by the time they got around to it, the link might have changed.  Can I just send the article to my friends, or is that somehow illegal?

Fit to be Printed

Dear Fit:

You are, of course, referring to the so-called “hot news” doctrine.  This legal rule, created by judges, is not a part of the copyright act (17 U.S.C. §101 et seq.) but rather, is a rule of “equity”.  This means that courts have the power to redress unfair situations even though the law does not expressly provide a remedy.  When a news organization invests the “sweat of the brow” (give me a break, judges talked like that back then) then another person will not be allowed a “free ride”  (they had steam trains and hobos, too, so they said things like this) by republishing what it took so much work to gather in the first place.  This doctrine was first expressed in International News Service v. Associated Press, 248 U.S. 215 (1918).  In that case, the Supreme Court said that although members of the public could repeat news items, competing wire services could not, at least until the “commercial value as news…has passed away” (old news is, I guess, “olds”.)

This doctrine has been adopted in a number of states, but New York (where lots of publishing goes on) is the leader.  In National Basketball Assoc. v. Motorola, 105 F.3d 841 (2d Cir. 1996) the Court said that hot news is protectable if it is gathered at some cost, is time-sensitive, that the second user competes with the gatherer, and if the free-riding reduces the incentive of the gatherer to produce the news or to maintain its quality.

Recently, in Barclay’s Capital v., a New York court indicated that to protect its hot news, the originator might have to prove that it actively “policed” its content, by going after those who republished it.  The court seemed to think that it may not be fair for the original publisher to be able to sue some users of its product, while winking at others.  This is the first time that the concept of policing, which is common in trademark cases, has been used in a hot news context.

And so, dear Fit, you have your answer: As long as you’re not in business competing with those from whom you copy your hot news, you’re free to republish.  Should you go into business, it may be a different story, and the “Doc” looks forward to hearing from you when you get sued.

— Lawrence A Husick, Esq.