The Troubling Implications Of Recognizing 'Hot News' As Property
from the you-can-copyright-facts? dept
A bunch of sites have been discussing the Associated Press's lawsuit against All Headline News, but I wanted to spend some time reading up on the case before commenting -- and the more I read, the more troubling it became. A standard tenet of copyright law is that "you can't copyright facts." However, it appears there are some exceptions to that, in practice -- which is the basis of the AP's lawsuit. Specifically, the AP is reaching back to some rulings from nearly 100 years ago, noting that "hot news" can be treated as property. Now, technically, this is outside of copyright -- but for all intents and purposes, it effectively creates a copyright on "hot news" using an amazingly broad five factor test:- a plaintiff generates or gathers information at a cost;
- the information is time-sensitive;
- a defendant's use of the information constitutes free riding on the plaintiff's efforts;
- the defendant is in direct competition with a product or service offered by the plaintiffs;
- the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.
The "hot news" exception is only recognized in a few states -- but one of them is New York, where the AP filed this lawsuit. One would hope that courts would eventually recognize that such a right would violate the concept of copyrighting of facts not being constitutional, but we may be in for a long series of legal fights before that's actually decided.
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Filed Under: copyright, facts, hot news
Companies: all headline news, associated press
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Copyright is not constitutional in the first place
See Mythologising Copyright.
Copyrighting of published original works isn't constitutional either, let alone of published 'hot news'.
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The first factor...
And if it was changed to "at a significant cost" would that lead to organisations working /less/ efficiently just so their work got some legal protection?
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We must fight this!
The Associated Press obviously has their own agenda, The company itself (notice I said company vs organization) has become directly competitive to their member papers and I would assert that they are no longer really acting like a membership organization and more like a monopoly.
I read on another blog an excellent, well thought post on whether the AP is good for America. See: http://pajamasmedia.com/blog/is-the-ap-good-for-america/
But what I guess troubles me is that the AP has repeatedly tried to assert rules and rights against others that it freely flaunts. And this truly makes the AP an evil organization in my book.
So I guess the question now is how do we fight this?
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Newz
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Re: Copyright is not constitutional in the first place
United States Constitution, Article I, Section 8:
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Trade Secret
Clearly 1 and 3 are met. The hard part is 2. Clearly if the Sears Tower in Chicago is blown up, such an event would be "reasonably ascertainable." However, I could see some circumstances where news would not be ascertainable as such.
The other problem for the AP is how you violate a trade secret. The first way is when you obtain the secret through improper means. E.g., corporate espionage.
The second is when you obtain or use the secret without consent when there is a duty not to disclose it. E.g., hiring a former employee who had a contractual duty to not disclose the secret.
And here's the problem. Once the AP publishes the secret, it's no longer a secret. The secondary source does not obtain it by any improper motive or without consent where there is a duty not to disclose it.
This is just a bad bad very very bad law.
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Plane Crash Images - first on twitter
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Quasi-Property Rights
http://thenoisychannel.com/2009/02/22/quasi-property-rights-associated-press-and-the-hot -news-doctrine/
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What happens when "hot news" happens and CNN (as an example) reports it. But on the ground is someone who decides to twitter it or youtube some video as it happens also. Does that give CNN or any news service who broke the "hot news" the right to sue someone?
With the crash, it was actually posted on twitter before the news, so can the person who Twitted it sue any news network since technically THEY broke the news?
This is going to be a slimy twisty road to watch.
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Weather Alert
The weather service has issued a tornado warning for a six county area in the state of .... (shuffling papers)
ahhh ... Sorry folks, I have been informed that we are not allowed to disseminate this information due to copy right restrictions.
And now on to the traffic report ... what? You've got to be kidding me! This is BS - I quit!
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Re: Re: Copyright is not constitutional in the first place
Given the harm caused by copyright litigation against the cultural liberties enjoyed by the common man, it's probably a rather good use of your time to read that constitution a little more carefully.
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The issue isn't the right of people who collect the "hot news" themselves, the issue is people reporting the "hot news" based on AP reports.
No, people that were at the crash site can't be sued because they "report" what they see. Yes, CNN does have a right to keep others from reporting on the "hot news" only using CNN coverage.
Its very easy, you want to report the news, report it, do the work. Just don't expect to pick up someone elses hard work and "report" the news. It really is as simple as that.
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Re:
I hope that somehow the discovery documents in this become public. it would be very interesting.
Here is the rub.
Decades ago the AP used to be this non-profit entity that existed as a neutral third party for the benefit of its memmbers. The problem is that it really doesn't act like that anymore. It's become more of a stand alone organization that in many ways doesn't need its "members" and now competes directly against them in many ways.
The AP is now a defacto stand alone organization, and thanks to the collapse of newspapers they have really become a monopoly. AP was hit with Sherman anti-trust action ages ago.. maybe the time has come again to break up the monolpoly because a MEDIA monopoly is much worse for America than any other type.
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i disagree
* AHN had an AP reproduction license
* AHN decided to drop that license
* AHN paid journalism students and foreigners well below journalist rates to "investigate" news merely by rewording AP articles posted on the web
* most of the time, the students or foreigners simply copied the entire article verbatim
* most of the time, when the article was not copied verbatim, the paraphrasing was grammatically wrong, but still used major chunks of the original AP work
* AHN posted these copies on their own sites, and even sold these copies for reproduction to other news outlets
AP is not claiming they own the actual facts in the news itself (they'd lose that argument so easily). AP is claiming that AHN was ripping off the actual AP articles.
This has little to do with the Drudge/blogger spat a while back, and it's not about the typical 2-3 sentences + backlink that bloggers do. Slate has had extensive problems with companies (not just small time 1k or less visitor/mo blogs) reposting their articles entirely. Huffington Post has been busted many times for reposting others entire articles word for word without any link back or any attribution at all. Many other blogs (like Arstechnica) have been accused of simply rewording other's articles (ever notice how Ars is usually 3 days behind El Reg at reporting tech news... even on weekdays?). On top of that, they usually refuse to outlink. That may have something to do with the fact that the pagerank algorithm cuts you down a ton for outlinking. Then, instead of spending money on reporters, some of these bigger blogs spend resources on exposure services that submit their articles to news aggregators and forums.
And fair use in this sense generally requires some sort of transformative use that adds a different type of value and does not devalue the original content. Copying entirely, or merely paraphrasing someone else's article (especially without backlinking) is not and never has been fair use.
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Re: Re: Re: Copyright is not constitutional in the first place
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Hm, someone's in trouble
Second, if a company ramping up crazy litigation is an indicator of a dying business model, then the AP is showing its hand in spades.
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Re: Re: Re: Copyright is not constitutional in the first place
There's nothing in United States Constitution, Article I, Section 8 which forbids the transferability of the "exclusive right." If Congress wants to allow such transferability and if the Supreme Court agrees, it's the law. Plain and simple
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Re: i disagree
According to AP and this is in the complaint that was with a different company called Americlicks. Now defunct
* AHN decided to drop that license
Not according to the AP.
* AHN paid journalism students and foreigners well below journalist rates to "investigate" news merely by rewording AP articles posted on the web
Where did you get that information? What is a "journalistic rate"?
* most of the time, the students or foreigners simply copied the entire article verbatim
Again. Where did you get that?
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Re: i disagree
God, you even manage to contradict yourself. You're acknowledging that the AP does not own facts. But yet you claim that ANH cannot use those facts.
"merely paraphrasing someone else's article (especially without backlinking) is not and never has been fair use"
Cite a case to back up that claim if you can, but rephrasing a fact is bedrock fair use. If a person owns one phrasing of a fact, and every other possible rephrasing of a fact is illegal, it owns the fact. Pure and simple. That's clearly not copyright law.
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Re: Re: Re: Re: Copyright is not constitutional in the first place
You'll find that copyright is a privilege and transferable (because it is a privilege not a right), even if the privilege does help secure the author's exclusive right to their writings.
Copyright is called 'copyright' because it suspends the people's right to copy and grants it as a transferable privilege, attached to an original work - purportedly an incentive to printers to fund the production and publication of new works for the public's benefit.
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Re:
What we don't need are transferable reproduction monopolies - though they were once lucrative to printers.
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Facts can't be copyrighted
Am I mistaken?
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Re: Re: Re: Re: Re: Copyright is not constitutional in the first place
There are NO inalienable rights. I challenge you to name one.
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Re: Re: Re: Re: Re: Copyright is not constitutional in the first place
You fail to understand that not all rights are inalienable. There are two basic types of right, natural and legal, and only one of those type is inalienable. For instance the right to vote is a legal right and is not inalienable. It can be quite legally removed and yet it is still a right whereas freedom of speech was seen by the founders as an inalienable right. Your lack of a basic understanding of "rights" is enough to discredit your entire argument. To state that all rights are inalienable is ludicrous on its very face. Don't bother trying to argue that legal rights are only privileges as that is also a false statement.
You'll find that copyright is a privilege and transferable (because it is a privilege not a right), even if the privilege does help secure the author's exclusive right to their writings.
Legal rights are transferable. I strongly suggest you do some research on the difference between natural and legal rights. Your entire argument is based on a falsehood that you continue to state and that is that all rights are inalienable which is simply not true.
Copyright is called 'copyright' because it suspends the people's right to copy and grants it as a transferable privilege, attached to an original work - purportedly an incentive to printers to fund the production and publication of new works for the public's benefit.
There is no right to copy anywhere in our body of law, the constitution, or any other document. It is simply not a right. You have now framed your arguments with two falsehoods. You are presenting, at best, a classic false dilemma and at worst an honest position with no understanding of the elements involved.
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Re: Re: Re: Re: Re: Copyright is not constitutional in the first place
John Locke defined three natural rights:
Life- everyone is entitled to live once they are created.
Liberty- everyone is entitled to do anything they want to so long as it doesn't conflict with the first right.
Estate- everyone is entitled to own all they create or gain through gift or trade so long as it doesn't conflict with the first two rights.
This discussion would be so much easier if you just researched what rights actually are and aren't. While I don't necessarily agree with Locke on everything you will find that your position, rights are all inalienable, is not supported by any of the major thinkers on rights. Natural rights may be inalienable by definition but natural rights are not the only rights.
I will go read something else while you try to sort of out a response.
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Re: Re: Re: Re: Re: Re: Copyright is not constitutional in the first place
Bear in mind that the context of my argument is the constitution. The constitution can recognise no privileges or 'legal rights', because there is no law that precedes the constitution except natural law.
As for the 'right to vote' it might be better to term this a constitutional right if it must be termed a right at all. This is because it is the people that empower the government, and who should thus remain enfranchised in that act - inalienably (criminal or not).
The right to copy is part of the right to liberty, and derogated from it to create the privilege of copyright. Rights need not be specifically enumerated by the constitution.
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Re: Re: Re: Re: Re: Re: Copyright is not constitutional in the first place
See Kinsella Interview on Lew Rockwell Show podcast: Intellectual.
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Re: Re: Re: Re: Re: Re: Re: Copyright is not constitutional in the first place
You completely fail to understand what the Constitution is if you believe that is cannot grant legal rights. Just because it is the highest law in the land does not mean, by an stretch of the imagination, that it cannot grant legal rights. In fact it does just that. It enumerates some natural rights as seen by the founders and grants legal rights. Both of these are then interpreted by SCOTUS for practical legal usage.
The right to vote is a precise example of a legal right. It is a right. "The right of citizens of the United States to vote..." (from article 15). This is a right granted by law, the highest law we claim to have for the land, and is not simply a privilege. It is a right that is also not inalienable. I do not choose to term the right to vote as a right, it is in the Constitution as such. Are you willing to argue that the Constitution is wrong on what is a right and what is not? I even mentioned trying to re-define legal rights as privileges which you tried to do with the right to vote which is spelled out in the words I quoted from article 15.
Your position is untenable as you have re-defined the term "right" to include only natural rights. You fail to recognize legal rights. And you state conflicting positions.
Your claims that copyright is not Constitutional based on falsehoods and a lack of understanding. Article 1 section 8 clearly allows for copyright and does not restrict congress in any manner. I despise the current state of IP in US but your arguments just don't hold water. You claim the Constitution cannot grant rights, which it specifically does. You claim creation confers ownership but then contradict that statement by claiming some public right to copy which would disallow the controlled of something owned.
Your lack of understanding is quite important to the argument as you are re-defining terms and using blatant logical fallacies. You want to stick to the argument but then wish to tie the hands of those confronting you by asking them not to point out failings in your understanding?
I challenge you to find any right of the public to copy enumerated anywhere, whether legal or natural.
Article 1, section 8 clearly states there is a right to exclusive use and that congress is responsible for defining that right. It is a right. It is stated as a right. It is also stated that it is to be for a limited time. This is legal right. It is defined by congress making laws and it is alienable. Your wish to define "rights" as all inalienable is the biggest flaw in your argument. The second is your statement that the Constitution does not recognize legal rights is outright false as large portions of the document deal with legal rights. The next major flaw is the false idea that somehow there is a right to copy in the natural right to liberty. Then you weaken your position further with conflicting statements. You have taken a wholly untenable position with no merit.
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Re: Re: i disagree
Sounds to me like he's some pro-IP shill making stuff up.
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Re: Re: Re: Re: Re: Re: Re: Re: Copyright is not constitutional in the first place
The right to liberty does not trump other rights, e.g. the right to privacy, or the right to life.
I have already agreed with the constitution's recognition of authors' exclusive rights to their writings.
The constitution gives congress no power to grant monopolies or other privileges.
See Paine: “It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect – that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few. … They…consequently are instruments of injustice. ”
Thus, the constitution does not grant any rights, but recognises citizens' natural rights and the power they grant congress to secure them.
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Re: Copyright is not constitutional in the first place
I have to admit, I've read your stuff multiple times, and I can't understand it. At all. Unless you can explain yourself better, it's difficult for me to take you seriously.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Copyright is not constitutional in the first place
Your words were "the people's right to copy" and I have challenged you to find any enumeration of this right. It doesn't exist. You can claim, as you have, it comes from the right to liberty but this is not true. If the right to estate grants ownership and the right to liberty does not override the right to estate, which you have stated, then you can only have permission to copy. Ownership is transferable and stems from the right to estate. So the transference of copyright is a transference of ownership. You state that creation does grant ownership but somehow in your logic you come to the conclusion that either ownership is not transferable or that ownership is a temporary state and neither of those bears out in the face of logic.
Article 1, section 8 gives congress the power to grant exclusive rights to discoveries. This is a monopoly whether you want it to be or not. It is a power given to congress by the Constitution. If the granting of exclusive rights is not the granting of a monopoly then I am not sure we are even speaking the same language. It would seem to me that exclusive rights is the definition of monopoly.
Your use of Paine, out of context, shows how little you understand the framers. The right to vote is not a natural right as there is no right to democracy or even a right to participate in selecting leaders. The right to vote, called such by the Constitution, is a granted or legal right. It is a right which can be removed and granted by law. It is still a right. It is obvious from the context, which you excluded, that Paine is referring to natural rights. Rights are not exclusively inherent. This is clear through multiple writers from the same period as Paine. Paine speaks on natural rights and you are trying to stretch those words to cover all rights. You cannot formulate an argument that all rights are natural. Natural rights are inalienable and legal rights are not. Representation is another legal right and not a natural right. It does not stem from life, liberty, or estate. It is a right granted to us by the Constitution. It is not inalienable. All we have to do is look further back in history to early Judaism to see how this is not a natural right. However we do have that right in US and it is granted by the Constitution.
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The Troubling Implications Of Recognizing 'Hot Chicks' As Property
get over it already
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re: I disagree
Look particularly at pages 13, 14, and 15. I'm somewhat insulted at your aggressiveness when the only thing that I misstated was that "AHN dropped the AP license" -- sorry, AHN repeatedly exceeded the scope of their AP license, didn't pay for it, and AP finally terminated the license. Just as I said above, the complaint alleges that AHN still barely reworded copies of AP articles (and flat out copied others), substantially underpaid novice journalists to do this copying, and then sold these articles to other news outlets. If you want to disagree with what the facts truly are, fine -- but you can't just make shit up. This is what's alleged, and if the facts as alleged are true, this is a cut and dry case of copyright infringement.
You guys are also mixing up "the stating of a fact that's in another article" with "the copying of an article stating a fact." You can't own a fact. Period. But even then, copyright does have an "independent creation" defense. Two people can come up with the exact same song, or article, or any other expressive work, and even if it's exactly the same, as long as they did it independent of one another, there's no infringement (Mike here at TD has been advocating this as an "independent invention" defense for patent law). However, providing evidence of that is a much different issue.
Anyways, when you take an article, reword it slightly, and sell it as your own news article, that's a derivative work and that's copyright infringement. Society allows citations and some adaptations as fair use because it doesn't destroy the value of the original work. But based on the fair use test (17 USC 107), if you're selling reworded or flat out copied articles, directly in competition with the original author, you're never going to pass the fourth prong ("the effect of the use upon the potential market for or value of the copyrighted work").
I'm certainly not a pro-IP guy, but when you guys make these ridiculous claims (like A1S8 doesn't allow for copyright, or criticizing me for "not reading the complaint" when you guys clearly didn't read it), you're really killing the copyleft movement's efforts.
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Re: re: I disagree
Max, if you had a source, you should have given it to begin with. Making statements like you did without doing so is sure to make it appear that you are making stuff up.
Look particularly at pages 13, 14, and 15.
OK, I've looked. And you said,
* most of the time, the students or foreigners simply copied the entire article verbatim
If that was anywhere in there then I sure missed it. What's more, if that were the case then it would be a straight forward case of copyright infringement, but that doesn't seem to be the case. If you can point where they claimed that most of the articles were copied verbatim then I would certainly like to see it.
Notice that a lot of the time AP is saying that the defendants "copied or rewrote" articles. That's far different from just saying "copied" because copying and rewriting are very different. AP seems to be trying to pretend that they are the same when they are not. In other words, they seem to be trying to apply copyright principles to information. But that won't fly under federal copyright law, so they are resorting to an old New York common law instead.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Copyright is not constitutional in the first place
I quoted Paine to help underline the fact that the constitution grants no rights or privileges - it recognises the rights that the people already have and that should be secured/protected. It cannot possibly recognise privileges that are unconstitutionally legislated at a later date (as 'rights'), nor does the constitution sanction this.
Power isn't given to congress by the constitution, but by the people as delimited by the constitution (that the people agree to), and this is why the people must remain enfranchised in that respect. The constitution is clearly not a natural construct, but the power the people have and convey through it is natural, and one may say that they have a natural right to direct, maintain, or withdraw their power that they convey to the government (as defined by the constitution).
Ownership of an object is naturally obtained by creation or purchase. The ownership of an author's writings is also obtained by creation or purchase.
Thus an author owns the writings they create, and has an exclusive right to them, until they sell or give them away, if ever.
It is not surprising that a privilege such as copyright can be treated as a commodity given it can be legally transferred. However, having a state granted monopoly does not constitute ownership of one's writings - even though such a monopoly may help secure one's exclusive right to them.
It would be far better if an author's exclusive right to their writings was treated as severely as any person's exclusive right to their material property, and policed and prosecuted by the state. Unfortunately, they must make do with a transferable monopoly and seek the aid of wealthy printers to enforce it - even if they are now beginning to recognise the ethics of neutralising the monopoly component via a copyleft license.
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Re: Re: Copyright is not constitutional in the first place
After all, there's no point me writing anything if it cannot be understood, especially by such as yourself.
Perhaps you could give me a little more of a clue as to what few things I could start off with in terms of explaining myself better?
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Copyright is not constitutional in the first place
What Is the Constitution?.
Thus the natural right for people to make and sell copies of their own property is part of their natural right to liberty. This right to copy was abrogated to privilege printers. The constitution did not need to reserve this as one of an uncountable set of actions within the right to liberty in order to prevent copyright later being legislated. Copyright is unconstitutional and unethical.
What's changed recently is that we are also realising how anachronistic and ineffective it is, as well as noticing how it violates our right to liberty.
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Re: Re: Re: Copyright is not constitutional in the first place
I guess I just don't understand what you think the Framers meant with "exclusive rights" if it wasn't a monopoly right. I agree that many (not all) were worried about monopoly rights -- but they seemed to believe that if they were limited to a short time they might be ok.
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Re: Re: Re: Re: Copyright is not constitutional in the first place
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www.Petka.BiZ
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Copyright
Last I checked, the law said the governmebnt shall make no law that limites the freedom of the press.
News is fact, fact is not something people can own, end of the arguement.
The ap sends me mail all the time, but never sued once.
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