International News Service v. Associated Press, 248 U.S. 215 (1918) (full-text).
Factual Background Edit
This case involved two wire services, the Associated Press (“AP”) and International News Service (“INS”), that transmitted news stories by wire to member newspapers. INS, apparently barred by British military censors from sending cables to the United States regarding World War I, read "hot" news stories in East coast newspapers that subscribed to the AP. The INS then telegraphed rewritten versions of those stories to its own subscribers on the West coast.
AP argued that such conduct violated its property right in the news material. INS asserted that any such property right was forfeited once the news was published, and that its review of the AP publications, regardless of its intent, was permissible.
U.S. Supreme Court Proceedings Edit
Recognizing that there is no inherent property right in news, the U.S. Supreme Court nonetheless found that, with respect to its competitors, AP had a "quasi-property right" in the quick and accurate compilation and dissemination of such news. The U.S. Supreme Court held that INS’s conduct was a common-law misappropriation of AP’s property.
|“||[The] defendant in appropriating [new stories] and selling it as its own [was] endeavoring to reap where it has not sewn. . . . . Stripped of all disguises, the process amounts to an unauthorized interference with the normal operating of complainant’s business at the point where the profit is to be reaped.||”|
The Court was influenced by the fact that INS and the AP were direct competitors. Indeed, the Court intimates that had INS been a member of the general public redistributing the AP's news it might not have been liable for misappropriation — "to transmit ["hot" news] for commercial use, in competition with complainant . . . is a very different matter [from the right of a purchaser to disseminate the information in the newspaper it has bought]."
This case established the “hot news” misappropriation doctrine, under which someone who takes uncopyrighted (and uncopyrightable) facts could be enjoined under a misappropriation theory. Based on legislative history of the 1976 Copyright Act, it is generally agreed that a “hot-news” INS-like claim survives preemption.
Although the INS decision was based on no-longer extant federal common law, it has been relied on over the years by various state courts in fashioning relief for similar conduct. INS was cited by the Supreme Court several times in the 1980s and 1990s, including in Feist v. Rural Telephone. Congress also referred to it in fashioning the preemption provision of the 1976 Copyright Act. The reference reads in full:
|“|| “Misappropriation” is not necessarily synonymous with copyright infringement, and thus a cause of action labeled as “misappropriation” is not preempted if it is in fact based neither on a right within the general scope of copyright as specified by section 106 nor on a right equivalent thereto. For example, state law should have the flexibility to afford a remedy (under traditional principles of equity) against a consistent pattern of unauthorized appropriation by a competitor of the facts (i.e., not the literary expression) constituting “hot” news, whether in the traditional mold of International News Service v. Associated Press, or in the newer form of data updates from scientific, business, or financial data bases. Likewise, a person having no trust or other relationship with the proprietor of a computerized data base should not be immunized from sanctions against electronically or cryptographically breaching the proprietor’s security arrangements and accessing the proprietor’s data. The unauthorized data access which should be remediable might also be achieved by the intentional interception of data transmissions by wire, microwave or laser transmissions, or by the common unintentional means of “crossed” telephone lines occasioned by errors in switching.
The proprietor of data displayed on the cathode ray tube of a computer terminal should be afforded protection against unauthorized printouts by third parties (with or without improper access), even if the data are not copyrightable. . . .
The doctrine remained, however, somewhat ill-defined and uncertain in scope, as different courts applied it in different circumstances, sometimes without refined analysis.
- ↑ Id. at 239-40.
- ↑ Id. at 239.
- ↑ H.R. Rep. No. 1476, 94th Cong., 2d Sess. 55 (1976), at 132 (1976).
- ↑ See Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938) (full-text).
- ↑ See generally Douglas G. Baird, Common Law Intellectual Property and the Legacy of International News Serv. v. Associated Press, 50 U. Chi. L. Rev. 411 (1983).
- ↑ Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 354 (1991) (full-text) (stating that legal protection for facts “may in certain circumstances be available under theory of unfair competition”); Carpenter v. United States, 484 U.S. 19, 26 (1987) (full-text); San Francisco Arts & Athletics v. United States Olympic Comm., 483 U.S. 522, 532 (1987) (full-text).
- ↑ 17 U.S.C. §301. See H.R. Rep. No. 1476, 94th Cong., 2d Sess. 132 (1976); S. Rep. No. 473, 94th Cong., 2d Sess. 116 (1976).
- ↑ 248 U.S. 215 (1918) (full-text).
- ↑ See, e.g., Metropolitan Opera Ass'n, Inc. v. Wagner-Nichols Recorder Corp., 199 Misc. 786, 101 N.Y.S.2d 483 (Sup. Ct. 1950)(full-text), aff’d, 279 A.D. 63, 107 N.Y.S.2d 795 (1951) (full-text).
- ↑ 105 F.3d 841, 41 U.S.P.Q.2d (BNA) 1585 (2d Cir. 1997) (full-text).