A recent pronouncement by Associated Press (AP) to adopt a more aggressive effort to “fend off copycat competition and “misappropriation” in the dwindling market for timely reporting,” has stirred the online news-outlet community and its players. In his capacity as the CEO of MediaNews Group Inc., and the Chairman of Associated Press board of directors, Dean Singleton has explicated his anger and animosity by making such statements as "We are mad as hell, and we are not going to take it anymore." The emerging concern and the sudden strong initiative by AP has been the result of revenue decline. AP reported its pre-tax operating profit for 2008 at $36.9 million, a noticeable drop from $45.8 million in 2007.
Singleton delineates that it is the “misappropriation on the Internet” that is at the issue and not “copyright”. While copyright deals with the protection of expression, and not facts, the tort for misappropriation of "hot news" covers the immediate copying and dissemination of "hot news" by commercial competitors of a news organization.
One of the earliest cases dealing with the issue of misappropriation of news, dates back to the year 1918, and interestingly involved AP. It was during the WW1, when two direct competitors in the business of gathering and distributing news- International News Service (INS) and AP- entered into a dispute. Since INS was banned from reporting from the frontline during the war, it relied on AP’s news stories. The news was available from publicly available sources on the East Coast, and INS took that opportunity to snatch the hot scoops and to rewrite the stories in their own words to be sold to its client on the West Coast. Consequently, the news was published simultaneously with AP. Inevitably, it hurt AP’s business.
The decision in INS v. AP discussed the issue of whether there is property in news and whether it survives publication. The majority proposed a “sweat of the brow” argument in support of AP’s property rights. It was stated that news is “gathered at the cost of enterprise, organization, skill, labor and money, to be distributed and sold to those who will pay money for it, as for any other merchandise”. Under Lockean labour theory, not acknowledging the property right will benefit the defendant who will reap what it has not sown, and this goes contrary to the policy considerations of rightful enrichment and profit incentive. The crux of the majority decision was that AP does not have an absolute right against the whole world. Instead, it enjoys a quasi-property right only against direct competitors.
In Justice Holmes' dissent, he stated that property is a creation of law and does not arise from value. The right of exclusion is central to property law, and one is not excluded simply because someone used the word, thoughts or facts before the other. Furthermore, the circumstances today are drastically different from 1918, and the question of balancing ones Intellectual Property rights against other policy considerations is a complicated game of ‘tug of war’. In addition to the unjust enrichment and labour theory arguments, additional considerations relevant in present day and age include: growing popularity of the Internet, ease of access to news online, growing dependency of individuals on free online content, wide availability of choices in news sites, and difficulty in monitoring and controlling content flow online.
This issue of misappropriation, as opposed to copyright infringement, has raised questions on whether sites like Google News or Yahoo News are also culprits. Google’s response to this allegation has always involved the justification based on s. 107 of the US Copyright Act:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Google already has an agreement with AP with regards to those articles hosted on its website. However, with regards to those articles that are not hosted, but are merely indexed, Google asserts that the use qualifies under Fair Use. Google asserts that its use of the content is a ‘transformative’ use, with the intent to make it easier to find by consumers. Inevitably, the popularity of Google and its practice to redirect traffic to the news publishers’ sites has been a boon to the imperiled newspaper industry. However, one of the AP’s goals is to make sure that these search engines results are “the original source or the most authoritative source,” not a site that copied or paraphrased the work.
A 2007 European case between Google and an organization called Copiepresse, which represents a number of newspapers in Belgium, has witnessed a decision favorable to newspapers over those search engine and news sites that carry out an unauthorized use of the content. The newspapers emphasized the need for permission to be obtained first, and some kind of an agreement between the parties. Likewise, AP’s new policies also propose a licensing agreement between the players. Other AP strategies include: development of an online content tracking system to determine whether AP’s content is being legally used; creation of new search pages to direct readers to news content from AP and its members; and pursuit of legal actions against those who do not conform to legal or licensed use of AP’s content.
While one may be sympathetic to AP’s efforts to assimilate hot and interesting news, there are significant contrary policy considerations that fly in the face of allowing newspapers to control their content absolutely. It will be interesting to see the future status of “news scoops” and its potential qualification as “quasi-property”.