Re: hot news

Bob Penn <thresshold[_at_]aol.com> wrote:
>
> I couldn't disagree more. While it may be ok on occasion to report
> something that aired on another network first [sort of akin to a
> fair use], the systematic taking of news remains actionable as
> misappropriation. You can be certain that if any news agency finds
> out that a competitor does not originate its own news but simply
> free rides off of the agencies reports, there will be a suit. In
> my opinion, so long as the news is still "hot" when taken, a
> misappropriation claim [as set forth in the NBA case] will succeed.

After Feist and with changing technology I find it very hard to believe that copyright exists in facts. I also find it hard to believe that the misappropriation tort will protect non-secret facts. Neither the UTSA nor the Restatement protect such things. So I guess I disagree that the Hot News idea has much vitality.

One regularly sees reports which begin "as the Washington Post will report tomorrow" on overnight news shows (e.g., MSNBC and CNN). This is taking the news before it is published in the paper. Isn't this a misappropriation under Bob Penn's interpretation? It certainly does not square with the misappropriation tort as it applies to trade secrets. Has it been expanded beyond that area? I've not specifically researched it of late, but it would seem to me to be hard to find a basis for misappropriation of *facts* in the absence of a contract or fiduciary duty.

The fact that someone would sue hardly seems to be the test of legality - though such suits, like SLAPP suits could chill the practice, regardless of legality.

I wonder, what is "systematic taking of news"? If I publish an online newsletter and I take all my facts from other newspapers and news sources, systematically, what is the misappropriation? It may violate journalistic ethics (as if there were any real journalism standards), or it may violate your or my or other's sense of propriety and fairness, but what is the law supporting such a proposition?

I thought the hot news cases were wrongly decided when decided. They are nonsense now.

NBA is wrong. Of course, this is just my position and the courts may make the new cause of action you proclaim, but I would then just argue that it is bad law and bad policy. I hope there are more suits and it gets settled, properly, in the brave new world of information.

Cheers,
Steve Jamar

Steven D. Jamar
Professor of Law
Director LRW Program
Howard University School of Law
2900 Van Ness Street NW
Washington, DC 20008

vox: 202-806-8017 fax: 202-806-8428
email: sjamar[_at_]law.howard.edu

The more you know, the more you know you don't know. Received on Wed May 28 1997 - 04:20:49 GMT