Dow Jones Wins Default In Questionable 'Hot News' Case

from the please-make-hot-news-just-go-away dept

Mon, May 19th 2014 5:34am — Mike Masnick

For years, we've been covering the dangerous "hot news" doctrine, a court created form of intellectual property protection that had been considered almost entirely dead, but which is technically still the law in New York, relying on a century old court ruling, that allowed a publication to claim that another publication couldn't report the same news when it was still "hot." About five years ago, a few legacy media players tried to revive the hot news doctrine after online competitors were getting attention for spreading the news that those legacy players were too slow (or too expensive) to help spread. Earlier this year, we noted that Dow Jones had filed a hot news lawsuit against Ransquawk, a so-called "squawk" service that provides near-real-time news updates, often to stock traders.

While Dow Jones had initially threatened the company with copyright infringement, someone realized that there's no copyright in headlines or factual news, which is basically all Ransquawk was sharing. Ransquawk had responded to initial threats from Dow Jones by pointing out that it got its information from a variety of sources, but apparently decided not to respond at all to the lawsuit. Because it didn't respond at all, the court found Ransquawk in default and has now granted an injunction against Ransquawk, saying it can't get someone with lawful access to Dow Jones to share their account, it can't pass on any Dow Jones content prior to that content being published on the web or in print, and it can't market its products to suggest that it will help people get access to Dow Jones content (even if it's true...).

Ransquawk responded to the ruling by noting somewhat accurately:

Ranvir Singh, the chief executive and a co-founder of the London-based Ransquawk, said in an emailed statement Friday that Dow Jones's case against Ransquawk is unconstitutional because it precludes free speech.

"Hot news misappropriation is an antiquated law, recognized in only 5 U.S. states and completely unrecognized in the U.K. and [European Union]. If we are guilty of it, then so are a multitude of other news aggregators," he said. The decision "truly flies in the face of modern practicality where news is transmitted across the globe in seconds, irrespective of who initially published it."

He added that fighting the claim would bankrupt Ransquawk as a company, and in the U.S. the company wouldn't even be able to claim its costs back.

That explains why he didn't respond to the lawsuit... but it also explains the result. Most US courts will simply give the party filing the lawsuit exactly what it wants if the other side doesn't show up. That's what a default judgment is. In this case, though, it's extra problematic because it may inspire others to think that hot news is a legitimate doctrine, even though the issue wasn't fully adjudicated here, but was rather decided on default.

It would be nice if we could just make it clear that the hot news doctrine violates the First Amendment and stop having to see these kinds of cases altogether.

Gov Uscourts Nysd 422038 19 0 (PDF)Gov Uscourts Nysd 422038 19 0 (Text)

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Filed Under: default, free speech, hot news, journalism, squawk service
Companies: dow jones, ransquawk

46 Comments

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Ninja (profile), 19 May 2014 @ 4:12am

He added that fighting the claim would bankrupt Ransquawk as a company, and in the U.S. the company wouldn't even be able to claim its costs back.

A very fair justice system. Not stacked against the weaker player. No, not at all.
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Jessie (profile), 19 May 2014 @ 5:41am

Why don't they just go ahead and sue the W3 Cons. for providing the HTTP spec as promoting copyright infringement.

Sad thing is, I fully expect someone to reply to this with an example of someone trying it.
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Arthur Moore (profile), 19 May 2014 @ 5:49am

Enforcement
Good luck getting anyone to enforce this ruling.

Though, given everything that's happened with Kim Dotcom who knows how far the UK will bend over to US corporations.
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That Anonymous Coward (profile), 19 May 2014 @ 5:51am

Huh... so filing a lawsuit in the US binds foriegn corporations to US law.
Shame that isn't a 2 way street.
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Jeff Green (profile), 19 May 2014 @ 5:53am

Looking at two Techdirt stories ...
I wonder if Dow Jones and WSJ managers or lawyers ever meet. WSJ complaining at a foreign court trying to restrict their free speech in one and DJ asking for the same thing in reverse in another ...

It's a funny old world.
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Lurker Keith, 19 May 2014 @ 5:55am

Justice
Wouldn't the Just thing for a Judge of a case where one of the parties didn't show up to do be to at least take a quick look at the claims & see if the Plaintiff at least has standing & falls w/in the Constitution & applicable Law before issuing a Default?

Really, this should be Pre-trial practice across the board.
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Anonymous Coward, 19 May 2014 @ 5:56am

Time to get rich quick
"Most US courts will simply give the party filing the lawsuit exactly what it wants if the other side doesn't show up."

Hmm, I think I know what my next get rich quick scheme will be!

*Goes to write up some legal papers*

To everyone here, I am suing you all for infringing on the rights to me and my likeness. You all have 2 arms, 2 legs, and 1 head just like me. And the men among you even have the same anatomy as me! As compensation for you all infringing on the rights to my likeless I demand up to 25% of your pre-tax income for the rest of your life.

If any of you actually show up in court to fight back I'll drop my case. Otherwise I'll win a default judgement, even though my lawsuit has no basis in reality or legally!
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Anonymous Coward, 19 May 2014 @ 6:04am

Re: Time to get rich quick
I should just sue every American for a dollar each. If all 300,000,000+ people don't show up I win by default.
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Anonymous Coward, 19 May 2014 @ 6:28am

Re: Looking at two Techdirt stories ...
The good news is that these agencies have seen through the Veil of Justice.

The bad news is that it's in a dead, archaic language (democracy and reality).
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Bergman (profile), 19 May 2014 @ 6:32am

If the Hot News doctrine is valid...
Wouldn't that mean that if Ransquawk got its data from non-Dow Jones sources and published it first, it could bar Down Jones from reporting those same facts as well?
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Michael, 19 May 2014 @ 6:50am

Re: Re: Time to get rich quick
$125 filing fee * the number of cases = $37,500,000,000

Will you be paying cash or check?
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Anonymous Coward, 19 May 2014 @ 7:05am

Re: If the Hot News doctrine is valid...
Nah, this is the Corporate States of America we're talking about here - it's all about the MOTHERFUCKIN' EAGLES!

They'd just drone strike their competitors into bolivion.

/Poe's
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Anonymous Coward, 19 May 2014 @ 7:12am

"[H]ot news doctrine violates the First Amendment..."

Just because a few professors and organizations such as the EFF want this to be so does not make it so. At the current time there is to my knowledge nothing in the body of judicial precedent that compels the outcome these vocal few passionately advocate. Of course, their advocacy is to me somewhat suspect since they strive to strip every vestige away from the concept that one who expends time and energy to create something useful should at least have some opportunity to attempt benefiting from his/her work before some coattail rider jumps on board and snatches the opportunity away...kinda like the children's fable about the making of a pie that the baker could not get anyone to help make, but they were all only too willing to partake of it once all the work was done. You know, sometimes the law operates on principles that do not fit neatly into the "Katie Bar the Door" economic principles proclaimed here are true and righteous. Sometimes simple fairness comes into play when fashioning remedies.
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That Anonymous Coward (profile), 19 May 2014 @ 7:27am

Re:
Please to explain how they create the news.
(well thats loaded right there)
They gather some facts, and write their own interpretation of them. Another group gathers the same data, but because group 1 arrives first they get to be the only outlet for NEWS... and you think this is perfectly acceptable.

Obama's plane touches down at JFK. Because station A said it first no one else ANYWHERE can report those facts until it is no longer "hot news".

Please show your mental gymnastics on a separate piece of paper.
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Whatever, 19 May 2014 @ 7:31am

Re:
It's the same as US companies ending up bound by EU privacy laws. It plays both directions.

Ransquawk would be wise to geo block their service in the US to avoid any further issues.
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Whatever, 19 May 2014 @ 7:34am

Re: Re:
They gather some facts, and write their own interpretation of them. Another group gathers the same data, but because group 1 arrives first they get to be the only outlet for NEWS... and you think this is perfectly acceptable.

Actually, the issue is that group 2 doesn't gather it's facts, it's just reads the report from group 1 and instantly rebroadcasts it as their own. They do none of the work, just reap the reward.

Put it another way: If Dow Jones didn't get the news for them, then Ransquawk would have no content, apparently they do not actually create their own.
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techflaws (profile), 19 May 2014 @ 7:54am

Most US courts will simply give the party filing the lawsuit exactly what it wants if the other side doesn't show up.

DVDFab anyone?
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jupiterkansas (profile), 19 May 2014 @ 8:11am

Re: Re: Re:
The real question is, if Dow Jones is releasing the data first, then why are people even bothering with Ransquawk? What are they doing so much better than Dow Jones?

This isn't about "I did the work." It's about stifling competition.
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Anonymous Coward, 19 May 2014 @ 8:33am

Re: Re: Re:
oppressive goverments would love you.

"we're not engaging in censorship, we're protecting intellectual property rights!"
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John Fenderson (profile), 19 May 2014 @ 8:35am

Re: Re: Re:
"apparently they do not actually create their own."

Dow Jones doesn't create the news. If Ransquawk is copying DJ verbatim, that's a copyright violation regardless of hot news. If they're writing their own copy, then it shouldn't matter if one of the sources of their facts was DJ.
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bob, 19 May 2014 @ 9:35am

Exactly --- plagiarism is BAD
The next thing ya know, Mike will be defending plagiarism and saying that schools are stomping on the First Amendment by stopping kids from plagiarizing whatever they can find.

The First Amendment protects you when you're expressing your OWN opinion, not when you're simply copying someone else's work verbatim.

The EFF is just a tool of billionaires who want to make more money.
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John Fenderson (profile), 19 May 2014 @ 9:39am

Re: Exactly --- plagiarism is BAD
The "hot news" doctrine is not about plagiarism. The ordinary copyright laws cover that quite well already. Hot news is about companies being able to have a defacto copyright over stuff which is explicitly and intentionally uncopyrightable: facts.
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Anonymous Coward, 19 May 2014 @ 10:05am

Re:
there is to my knowledge nothing in the body of judicial precedent that compels the outcome these vocal few passionately advocate.

"Hot news" laws are, in essence the copyrighting of facts. There is legal precedent against the copyrightability of facts. See Feist v. Rural.
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Mike Masnick (profile), 19 May 2014 @ 10:40am

Re:
Just because a few professors and organizations such as the EFF want this to be so does not make it so.

Yeah! And respected federal judges too!

http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2837&context=journal_articles

Oops.

You can apologize now. But you won't. Because you never apologize when you're wrong. And yes, you're wrong. Nearly everyone recognized that the hot news doctrine was dead and buried, and a serious free speech problem until the AP tried to revive it a few years ago. This wasn't just an "EFF and professors" issue.

You could admit you were wrong. But you won't.

Why is it that every time you comment here I have to point out how you don't seem to know the facts?
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Anonymous Coward, 19 May 2014 @ 10:54am

Re: Exactly --- plagiarism is BAD
The next thing you know your analogies won't suck!
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Anonymous Coward, 19 May 2014 @ 11:16am

Re:
"... they strive to strip every vestige away from the concept that one who expends time and energy to create something useful should at least have some opportunity to attempt benefiting from his/her work before some coattail rider jumps on board and snatches the opportunity away..."

Copyright in the United States does not depend in any way on how much effort is involved in the creation of a particular work. Your use of the word "vestige" (as in "vestigial organ") seems rather apropos, considering the doctrine was soundly rejected in Feist Publications v. Rural Telephone Service.
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Anonymous Coward, 19 May 2014 @ 11:17am

Re: Re: Re:
"it's just reads the report from group 1 and instantly rebroadcasts it as their own."

The facts belong to no one.

Those rebroadcasting the facts are not claiming to be a primary source. Yes, if someone claimed to be the primary source of facts and they weren't that would be a lie. but where is this happening here?

How is this promoting the progress of the sciences and useful arts? Is it copy protection laws that encourage the Dow Jones to report or are they doing it for other reasons? What, if they don't get copy protections on their reports will they suddenly go bankrupt or something and no one will have any reports?

IP laws should be about serving a public interest not about giving Dow Jones a monopoly on information that they shouldn't be entitled a monopoly on.
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Anonymous Coward, 19 May 2014 @ 11:40am

Re:
IP laws should not be about 'fairness'. No one is entitled to a government established monopoly and it's not fair that my government is taking away my natural right to freely copy just to give someone else the exclusive privilege of preventing me from copying. So if you want fair then abolish IP laws. That's fair.

IP laws should only be about promoting the progress of the sciences and useful arts and serving a public interest. Not about giving someone a monopoly they are not entitled to. That people like you continue to misconstrue it into something else is arguably the biggest reason I want IP law abolished.

"At the current time there is to my knowledge nothing in the body of judicial precedent that compels the outcome these vocal few passionately advocate."

95+ year copy protection lengths and retroactive extensions are a result of a small minority. You and I and everyone here knows that they are a result of corporate lobbying, corporate campaign contributions, revolving door favors, and back door dealings. It's highly unlikely the majority of the people would agree to this. The negotiations favoring these laws are done in secret, with industry interests invited, because the negotiators know very well that the majority will not be happy with these laws. It is very rare for an elected official to run for office and win by claiming that they will expand IP laws when elected (actually I don't think I've ever seen it) though I have seen them claiming the opposite to some extent (I remember Obama, at one time during his early days as president and/or before was claiming he wanted to potentially eliminate the FDA approved patent length extension but, after much industry lobbying, he changed his mind). The reason elected officials don't run for office claiming that they will expand IP laws even more when they win is because they know very well this is a sure way to quickly lose an election.

SOPA brought forth many protesters but every time the MPAA or some other organization tries to start an astroturfing campaign, even after paying those trying to get signatures for each signature they get, it fails miserably. The corporations that are offering politicians campaign contributions and revolving door favors to the politicians that pass these sorts of laws aren't doing it because they're not getting anything in return. They're doing it in return for disproportional representation. When politicians pass laws based on what they personally get in return that's not democracy. It's not fair that a few corporate entities have managed to take over the legislative process.

and it only makes you look dishonest to keep repeating this lie which further gives me the impression that those holding your opinion are dishonest.
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Anonymous Coward, 19 May 2014 @ 11:43am

Re: Re:
He is much too dishonest to admit when he is wrong, just like most of the other IP extremists. What do you expect?

IP extremists have no conscience. They subvert the democratic process through revolving campaign contributions, revolving door favors, and back door dealings. So it's no surprise they will come here and continue to spread lies that only serve to make them look bad.

Why should anyone take the moral opinion of someone with no conscience seriously?
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Anonymous Coward, 19 May 2014 @ 12:07pm

Re: Exactly --- plagiarism is BAD
You really are desperate. The next thing I know you will conflate plagiarism with infringement with 'hot news' which is not even covered by copy protection laws. You will claim that those that criticize our current IP laws and those that criticize 'Hot news' are somehow more likely to defend plagiarism. Oh wait ...

Sometimes I wonder if you IP extremists are really critics pretending to be extremists. Then again IP extremists have been known to non-anonymously say stupid things and to contradict themselves.

"RIAA Claims File Sharers Are 'Undermining Humanitarian Efforts In Haiti', But Leaves Out The Facts"
http://www.techdirt.com/articles/20100305/0317058431.shtml

I would think that your posts are either satire or someone pretending to be an IP extremist when they're not if it weren't for the fact that IP extremists are just dumb even when not being anonymous. Then again the entertainment industry (ie: Hollywood) has a long history of drug use (ie: actors always in rehab) so it should come as no surprise that much of what they say comes out as incoherent nonsense.
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Anonymous Coward, 19 May 2014 @ 12:15pm

Re: Re:
This is not about copyright, so Feist does not apply. FWIW, perhaps we should once more embrace a facet of the original us copyright law, namely that sweat of the brow was not a disqualification.
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Anonymous Coward, 19 May 2014 @ 12:27pm

Re: Re:
Uh....not sure how to break the news that Posner is not the final say on US law.

If this issue ever makes its way back to the USSC such that INS was presented for reconsideration, I rather doubt the court would find persuasive "This is easy. Posner asserts you blew it in INS."
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Mike Masnick (profile), 19 May 2014 @ 1:04pm

Re: Re: Re:
Uh....not sure how to break the news that Posner is not the final say on US law.

Does it hurt your back to move those goalposts so far?

1. I note that many people recognized "hot news" was an obsolete doctrine.
2. You claimed that it was only academics and EFF types.
3. I point out that's not true, that respected judges like Posner have said the same.
4. You move the goalposts and pretend someone said that Posner is the final say.

Still waiting for your admission of being wrong, knowing it'll never come.
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Anonymous Coward, 19 May 2014 @ 2:19pm

Re: Re: Re: Re:
Notate to self: MM of TD likes to focus on irrelevant minutiae to avoid considering that many of his declarations are not anywhere near as definitive as he would have others believe.
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Anonymous Coward, 19 May 2014 @ 2:29pm

Re: Re: Re: Re: Re:
Would you mind providing examples of such "irrelevant minutiae"?

I'd dismiss you as a troll, but I find your presence here to be quite useful. Your role is rather like that of Simplicio in Socratic dialogues.
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nasch (profile), 19 May 2014 @ 2:59pm

Re: Re: Re:
This is not about copyright, so Feist does not apply.

So this "hot news" thing isn't even part of copyright law? It's a whole separate statute?
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Anonymous Coward, 19 May 2014 @ 3:12pm

Re: Re: Re: Re: Re: Re:
HN violates 1st Amendment is a declarative statement that to my knowledge has never been declared a normative rule. It arose during a period where federal courts, exercising diversity jurisdiction, would on occasion engage in the creation of common law. That practice was largely truncated in 1938 with the USSC decision in Erie v. Tompkins. While the doctrine is not widespread among the sates, it nevertheless retains some measure of vitality among a small subset.

FWIW, being a matter of state law, I am unaware of anyone who seriously argues that the doctrine is a subset of IP. A class of activity that has been recognized in some jurisdictions as a form of Unfair Competition? Yes. Property? No, though I would not be surprised if some have done so. If you are aware of any article so advocating, I would be interested to read it because it would advocate a counterintuitive position.
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Anonymous Coward, 19 May 2014 @ 3:13pm

Re: Re: Re:
Since when does "sweat of the brow" disqualify claims of any kind, other than those based solely around "sweat of the brow"? The point is that effort alone is not enough to grant a person exclusive rights over particular facts.

And how is International News Service v. Associated Press, which decided that facts aren't subject to copyright protection, "not about copyright"? While it's true that the decision against INS was ultimately based on unfair competition law, the end effect is exactly the same as if the law did grant copyright on "hot news". It therefore seems to me at least plausible that SCOTUS would today reject a "sweat of the brow" argument in favor of such "quasi copyright" protections, for similar reasons as in Feist.
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Anonymous Coward, 19 May 2014 @ 3:17pm

Re: Re: Re: Re:
Hot News is not a matter of federal law. It is one of state law in a few states.
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Mike Masnick (profile), 19 May 2014 @ 3:42pm

Re: Re: Re: Re: Re:
many of his declarations are not anywhere near as definitive as he would have others believe.

You do realize that applies to you a hell of a lot more than it applies to me?

You said that it was only profs and EFF types who felt that way about hot news. I proved you wrong -- as I seem to do nearly every day when you make blatantly incorrect statements here.

And yet, as per your usual MO, you move the goalposts, or equivocate or insult, rather than manning up and apologizing for being wrong.

So, can you admit you were wrong? Of course not.
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Anonymous Coward, 19 May 2014 @ 4:09pm

Re: Re: Re: Re: Re: Re:
"only"? That is your word. I merely made a general statement given your tying HN and the 1st Amendment. It is not a forgone conclusion that the former violates the latter. In some instances that may very well prove to be the case, but that outcome is not inevitable as you appear to opine.
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Anonymous Coward, 19 May 2014 @ 5:21pm

Re: Re: Re: Re: Re: Re: Re:
"only"? That is your word. I merely made a general statement given your tying HN and the 1st Amendment.

You said: "Just because a few professors and organizations such as the EFF want this to be so does not make it so." The implication is clear that there's no support for the idea outside of academia and advocacy groups.

You're not fooling anybody. Not even yourself.
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Mike Masnick (profile), 19 May 2014 @ 5:36pm

Re: Re: Re: Re: Re: Re: Re:
It is not a forgone conclusion that the former violates the latter. In some instances that may very well prove to be the case, but that outcome is not inevitable as you appear to opine.

No fucking duh. I give my opinion. Your response is "that's just your opinion!" Yes.

Now that we've settled that, can you finally admit that you were wrong?
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Anonymous Coward, 20 May 2014 @ 7:20am

Re: Re: Re: Re: Re: Re: Re: Re:
"It would be nice if we could just make it clear that the hot news doctrine violates the First Amendment and stop having to see these kinds of cases altogether."

Obviously we have different views about what comprises an opinion. When I read the above it suggested to me that your intent was to some degree to scold those who simply do not realize that the doctrine and the 1st Amendment are irreconcilably at odds. By my reading it does not admit to any possibility that no conflict may arise. This is, of course, incorrect, and your "duh" seems to suggest so much. Problem is, your statement laid no foundation for the possibility of a "duh" situation.

As for the legitimacy of the doctrine, it remains a part of the body of tort law in a few jurisdiction and is anything but dead. The fact it is narrowly defined merely means that it is not a legal doctrine of wide applicability, but is one that may come to the fore is the presence of specific circumstances.

My comments here are merely general to briefly mention a couple specific points. Feel free to cherry pick them if you must to point out glaring inconsistencies, but in doing so do try to keep in mind that I am motivated solely by trying to note your article's characterization of the tort of misappropriation as expressed in the INS case appears to be a declarative statement that is not altogether correct.
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Mike Masnick (profile), 20 May 2014 @ 10:46am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Can I save you some trouble? Perhaps this would have prevented the past five years of you making ridiculous comments on this site, but: THIS IS AN OPINION SITE. I state my opinion. Full stop.

I would have thought that was obvious by now, but you still don't seem to get it.

Is it possible that courts will disagree with me? Yes. But that's true for the idiotic assertions that you often make as well.
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Anonymous Coward, 20 May 2014 @ 2:07pm

Perhaps it would help to trot out that long used phrase "In my view/opinion/etc.", or perhaps to identify TD as an editorial site with respect to articles that are meant to be editorial in nature. Far too often it seems that the line of demarcation between editorial and news is blurred.
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