Hot News Is Back: Court Blocks Website From Reporting The News

from the first-amendment? dept

Fri, Mar 19th 2010 6:44pm — Mike Masnick

In the last few years, there's been a push by some companies to bring back the immensely troubling "hot news doctrine," that appears to violate everything we know about the First Amendment and copyright law. Basically, the "hot news doctrine" says that if someone reports on a story, others are not allowed to report on their reporting for some period of time -- on the theory that it somehow undermines the incentive to do that original reporting. Last year, we wrote about the very troubling implications of allowing the hot news concept to stand. Beyond the free speech implications, it also has the troubling quality of effectively creating a copyright on facts -- which are quite clearly not covered by copyright. On top of that, it's not necessary in the slightest. As anyone who is actually in the online news business knows, getting a scoop gets you traffic -- even if others report the same thing minutes later. Being first gets you the attention. You don't need to artificially block others from reporting the news.

Unfortunately, with various publications struggling, some have picked up on the hot news doctrine as a way to somehow block competition. Tragically, it looks like a court has now adopted the hot news doctrine in one case. Paul Alan Levy alerts us to the news that a judge issuing an injunction against TheFlyOnTheWall.com, a website that would publish summaries of Wall Street research. The Wall Street firms said this undermined their business model -- and the court agreed. It passed an injunction saying that TheFlyOnTheWall had to hold off publishing any news about any Wall Street research report until either 10am (if the report is released early in the morning) or for two hours after it's released if it comes out during the day.

These totally arbitrary restrictions are highly troubling from a free speech standpoint and seem effectively random. This seems like yet another case of a company being upset by interference with its business model, which should be a reason to change the business model -- not run to the courts.

But what's most troubling of all is that now all the publishers who have been salivating over the hot news doctrine have a legal ruling to point to. Can you imagine how the world would work if you couldn't blog about or mention a particular piece of news for a few hours because the Associated Press got to it first? It's hard to see how this could possibly stand up to a First Amendment analysis, and it's quite troubling that the judge found the way she did.

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Filed Under: copyright, facts, first amendment, hot news, reporting
Companies: theflyonthewall

43 Comments

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Anonymous Coward, 19 Mar 2010 @ 6:58pm

Not only is this plain stupid in itself, it goes against the way news spread around on the internet -- you know, word-of-mouth viral sort of newscasting instead of the traditional centralised news reporting...
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Anonymous Coward, 19 Mar 2010 @ 7:12pm

Instead of requiring the world to adapt to your broken business model, why not adapt your business model to the free market?
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Anonymous Coward, 19 Mar 2010 @ 7:16pm

Like I said, Free speech for the big corporations who get to spend whatever they want on campaign contributions, but enslavement and censorship for the public.
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Anonymous Coward, 19 Mar 2010 @ 7:18pm

Re:
It's the public's fault for not bribing, sorry, lobbying their representatives hard enough.
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Anonymous Coward, 19 Mar 2010 @ 7:31pm

Extra! Extra! Read all about this really important piece of life-saving information . . . tomorrow.

Extra! Extra!
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umb231, 19 Mar 2010 @ 7:42pm

... I'd be interested to hear the excuse they give for not allowing similar hot news time delay for non newspaper reports, like blogs breaking a story and such. Cause clearly, they're not going to stop reporting news just because they didn't get it first.
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DanVan (profile), 19 Mar 2010 @ 7:44pm

Come on, who thinks this would have even a remote chance of actually sticking?

Blogs would continue updating and news source would continue fighting for hits with stories of the event
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Anonymous Coward, 19 Mar 2010 @ 7:48pm

The Wall Street firms are all happy about this now...until another publication uses the "hot news doctrine" against them. Then they'll gnash their teeth and clench their fists and have a temper tantrum like any 2-year old. "I want what I want when I want it. What's immature about that?" Entitlement culture at it's finest.
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Anonymous Coward, 19 Mar 2010 @ 8:08pm

So that does mean if a "blogger" "reports" it first they can sue the ap?
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Anonymous Coward, 19 Mar 2010 @ 8:23pm

Apparently the author of the article to which you link is unfamiliar with the 1918 Supreme Court decision in I.N.S. v. A.P.
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Anonymous Coward, 19 Mar 2010 @ 8:38pm

A Federal Case?
Whats more, this ruling came from a federal court. While New York may have a "hot news" law, there is no such federal law. So this federal judge appears to be making up federal law from whole cloth.
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Kevin Stapp (profile), 19 Mar 2010 @ 9:37pm

I wonder if this ruling won't run afoul of the Supreme Courts decision in Citizens United vs Federal Election Commission? If a corporation has the same First Amendment right to free speech as an individual then wouldn't this injunction be a violation of corporate free speech?
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Anonymous Coward, 20 Mar 2010 @ 12:13am

Hot News has been around since the first world war. It's old, established, and almost completely judge-made law. (They invented it out of unfair competition stuff.) Another example of old law -- in this case for telegraph-era newspapers and wire services -- not fitting with new technology.
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Anonymous Coward, 20 Mar 2010 @ 12:21am

"If a corporation has the same First Amendment right to free speech as an individual"

Corporations have MORE first Amendment rights than individuals, at least in our legal system.
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Anonymous Coward, 20 Mar 2010 @ 1:18am

The "judge" was bribed. It's obvious and the only explanation other than the "judge" being an idiot which is obviously absurd...right?
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Ralph-J (profile), 20 Mar 2010 @ 4:01am

Link Building Advantage
Although I don't agree with the idea of the Hot News doctrine, there is an indirect competitive advantage to whoever reports news first. While reporting by others might be illegal for a set period of time (and probably only in the US!), this will likely not prohibit anyone from linking to the article, be it with a short line, a quote etc. Consequently, their article tends to get most inbound links from Facebook, Twitter, blogs, other websites etc., and inevitable rank higher in search engine results, both for this article, and generally. In the end, this means more traffic and more income from advertising.
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Michael Lockyear, 20 Mar 2010 @ 6:54am

In a country which supposedly guarantees freedom of speech and the freedom of the press, such a ruling is nonsensical. Rulings such as these will not be taken seriously and serve simply to undermine respect for the law.
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ChrisB (profile), 20 Mar 2010 @ 7:29am

I wonder how thins will hold up with Twitter, facebook, and other social media tools? Can a person now get sued for a twitter message summarizing a "Hot News" piece before the time limit?

Another thought: Does this apply only to the internet? or can I print out a version of the "Hot News" and pass it out on the street before the time limit?
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Pete, 20 Mar 2010 @ 7:57am

What law did the judge cite in the decision?
I'm not aware of any law that places restrictions on reporting. Heck, that runs afoul of both "freedom of speech" and "freedom of the press".

It's very scary that a judge can make what seems to be a clearly unconstitutional decision and invent a law out of whole cloth and you can get in trouble for not obeying the decision.

I am wondering more and more everyday if I should move to another country... but I'm not sure if anywhere else is even better anymore
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anonymous, 20 Mar 2010 @ 8:22am

Hot News doctrine recognized by U.S. Supreme Court (1918)
U.S. Supreme Court
International News Service v. Associated Press, 248 U.S. 215 (1918)

CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE SECOND CIRCUIT

***

But one who gathers news at pains and expense, for the purpose of lucrative publication, may be said to have a quasi-property in the results of his enterprise as against a rival in the same business, and the appropriation of those results at the expense and to the damage of the one and for the profit of the other is unfair competition against which equity will afford relief. P. 248 U. S. 236.
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abc gum, 20 Mar 2010 @ 12:07pm

Re: Hot News doctrine recognized by U.S. Supreme Court (1918)
This just in - breaking news

Ahhhhh,
Film at eleven ... tomorrow evening.

Had this not beeen a real emergency, you would still be alive to watch it.
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Technopolitical (profile), 20 Mar 2010 @ 6:22pm

The Wall Street firms said this undermined their business model -- and the court agreed.
" The Wall Street firms said this undermined their business model -- and the court agreed." I think rightly so were the courts. And i think it will stand on appeal, The "News" at question here , is actually original research produces to be a exclusive to paying customers. Now at all the same as "breaking news for the Times , et al ......
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Technopolitical (profile), 21 Mar 2010 @ 7:01am

Re: The Wall Street firms said this undermined their business model -- and the court agreed.
(spelling corrected)
" The Wall Street firms said this undermined their business model -- and the court agreed."

I think rightly so were the courts. And i think it will stand on appeal, The "News" at question here , is actually original research produced to be a exclusive to paying customers. Not at all the same as "breaking news for the Times , et al ......
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Anonymous Coward, 21 Mar 2010 @ 7:20am

Re: Re: The Wall Street firms said this undermined their business model -- and the court agreed.
Who says they will not try to extend it to cover the weather and traffic report
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anonymous (20), 21 Mar 2010 @ 8:48am

Judge Cote's Opinion & Order,p.55,dated 18 MAR 2010:

Under NBA, the elements of
an INS claim surviving federal preemption are:

(i) a plaintiff generates or gathers information at a
cost; (ii) the information is time-sensitive; (iii) a
defendant’s use of the information constitutes free
riding on the plaintiff’s efforts; (iv) the defendant
is in direct competition with a product or service
offered by the plaintiffs; and (v) 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.
NBA, 105 F.3d at 845.
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Izzy, 21 Mar 2010 @ 10:21am

fuck that judge
she got paid off.... fuck this system
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Michial Thompson, 21 Mar 2010 @ 11:51am

little mike should be concerned
WOW, little mikee, seems that this injunction has little to do with free speach. Seems that all it stops is a site from doing exactly what you do, take someone elses work and republish it for your own gain....

Seems like a pretty good idea actually. Maybe if you and your counterparts could take and actually write something original you wouldn't be so concerned.
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Anonymous Coward, 21 Mar 2010 @ 12:25pm

Re: little mike should be concerned
Yes! This aggregation of information must end! This commentary of information must end! When will the internet be run the way little michiall wants it run!

It's not fair! It's so not fair!
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Anonymous Coward, 21 Mar 2010 @ 1:08pm

Re: Hot News doctrine recognized by U.S. Supreme Court (1918)
And there was no basis in law for that ruling, either (which was vigorously opposed by Justice Brandeis on those grounds). It was an example of the court simply making up law in order to achieve the outcome it wanted.
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abc gum, 21 Mar 2010 @ 1:09pm

Re: little mike should be concerned
Michial Thompson keeping it classy as usual.

That's the thing about Michial Thompson, he acts in such a mature manner and never belittles anyone with silly name calling or other derogatory retort.

I look forward to the time when the weather and traffic report can only be found on one channel, because we can not tolerate the theft of facts which clearly belong to whomever whines the loudest.
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Anonymous Coward, 21 Mar 2010 @ 1:17pm

Re: little mike should be concerned
Did you know that your blog has an RSS feed that allows everyone to STEAL ALL YOUR CONTENT!?!?!?

You should really shut down that THEFT DEVICE.
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Justin Levine (profile), 21 Mar 2010 @ 4:40pm

Thank Goodness For This Decision!
I have a great business model wherein I employ slave labor to undercut the prices of my competition. A competitor sued me on behalf of my slaves - claiming violations of the the 14th Amendment and other related civil rights. The judge allowed me to continue this operation under the "cheap goods" doctrine, but because he had to "balance these interests" with Constitutional considerations, he limited my employee operations to just 2 days of indentured servitude before I had to capture new slaves and start the process over again.

Good thing that courts are in place to uphold these business models, rather than people's so-called "rights".
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NullOp, 22 Mar 2010 @ 4:07am

Newz
WTF?
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ethorad (profile), 22 Mar 2010 @ 5:48am

Re:
I'd be interested to see how that goes*. After all, given the speed of the blogosphere and the twitterverse (and facebookland?) the chances of a traditional media company being the first to report on any given large event is pretty small.

Plus, if the newspapers all put up paywalls so you can't read their stories without paying, how are you to know that you've been scooped and so can't report on something?

*Actually, not that interested since I'm fairly certain I can predict which way it'll go ...
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Danny, 22 Mar 2010 @ 6:40am

Re:
This is what I'm waiting for to happen. The first time the AP tries to sue a blogger for violating this and the investigation proves that blogger actually reported first I totally imagine AP going all RIAA/MPAA and try to get the blogger to hurry up and pay them under threat of burying them under paperwork.
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Paul OFlaherty (profile), 22 Mar 2010 @ 8:02am

And I'm moving to the US, why?
Seriously, it's legal decisions like this that, as a blogger, make me question my impending move the U.S. How far will much further will the restrictions on speech go, in order to prop up outdated business models?

Maybe I'd be better off staying here in Ireland.
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OldGeek, 22 Mar 2010 @ 9:02am

New World Order
Welcome to the United Socialist States of America!!
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Anony1, 22 Mar 2010 @ 9:15am

@Michial Thompson: Go piss yourself you coward.
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Anony1, 22 Mar 2010 @ 9:16am

BTW, Your attacks sure make me want to visit your blog...NOT.
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Anonymous Coward, 22 Mar 2010 @ 10:27am

Re: And I'm moving to the US, why?
"Maybe I'd be better off staying here in Ireland."

Until we export (by coercion) our brand of legal protectionism to your government, of course.
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hotnews, 11 May 2010 @ 9:44pm

Why should Like That...?
I do not understand what it means to be made like that. No need to set the first time who is entitled to broadcast news hot. Everyone has the right, as long as no damage, cheat, deceive with false news.
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Ron Rezendes (profile), 23 Jun 2010 @ 8:58am

Re: little mike should be concerned
Troll train ....choo-choo!
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Tall sheepskin boots, 12 Dec 2010 @ 6:07am

Do you mean to say that if one of my relatives died in an accident and a newspaper published the accident with the name of my relative in it, I can't post it in Facebook to spread the news to my other relatives and my friends? Tall Sheepskin Boots
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