Re: "hot news" myth

On Fri, 30 May 1997, Dan L. Burk <burkdanl[_at_]shu.edu> wrote:
>
> Feist dealt with federal IP policy in compiled facts.

No -- Feist dealt with the extent of Congressional power provided by the Copyright Clause of the Constitution.

> It happened to access it via the copyright statute, but the subject
> matter dealt with was exactly the same as that in INS. INS is dead.
> The Second Circuit just hasn't figured it out yet.

I find it difficult to believe that Justice O'Connor would spend a paragraph discussing INS v. AP, and just forget to mention that it was no longer good law, if that's what she had intended to hold.

In any event, even if Feist had held INS to be overruled (which it did not), what that would have meant was that Congress was not empowered to enact a statute giving a hot news right a la INS. It would say nothing about the states rights to enact such a law.

Certainly such a law might be pre-empted, but that wasn't what Feist was about. The NBA court discussed the possibility of preemption, and held that it would be preempted in most cases, but not in a very small number of other cases.

There's nothing in Feist holding either that INS was overruled or that an INS-type right is preempted.

> > (3) Feist dealt with protection for the selection and arrangement
> > of unprotected facts; INS's "hot news" misappropriation theory
> > defined circumstances giving rise to protection (albeit short-term)
> > for the facts themselves.
>
> This is a distinction without a difference. Both dealt with the
> "sweat of the brow" in compiling facts. Feist states very clearly
> that theory is constitutionally unsound.

Feist states only that sweat of the brow does not in itself make the compiler an author for purposes of the Copyright Clause. It certainly did not hold that a theory granting limited proprietary rights in facts is unconstitutional.

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