International News Service v. The Associated Press, 248 U.S. 215 (1918)
1. Parties: The Associated Press (AP) - Plaintiff at the District Court, appellee and appellant at the
Circuit Court (both parties appealed); and International News Service (INS) – Defendant at the
District Court, appellee and appellant at the Circuit court.
2. Objectives: AP wants to stop INS from copying and distributing news gathered by AP (members).
3. Theories of Litigation: AP alleges (1) INS is violating AP’s property rights in the news its members
gathered; and (2) INS’ actions amount to unfair competition. INS answers (1) there is no property
right in news and, (2) even if there were, upon publication, any such property interest is lost.
4. [Prior and Present Proceedings] Procedural History: (a) District Court – issued an injunction against
INS for bribing employees of AP members and inducing members of AP to violate its By-Laws but
refused to enjoin the practice of taking news from bulletin boards and early editions of AP papers
and selling it; (b) Circuit Court – sustained the injunction issued by the District Court and remanded
to the District Court to broaden to disallow appropriation of AP’s news until its commercial value as
news expired.
5. (Relevant) Facts: (a) INS and AP are competitors in the business of the gathering and distribution of
news; (b) INS admits that it copied news distributed by AP or its members from bulletin boards and
early editions of AP member papers; (c) INS admits that it sold this news to its members without
verifying it or making clear that the information originated with AP.
6. Issue:
a. Broad – Whether AP is entitled to an injunction against INS for its use of news collected
from bulletin boards and early editions of AP member papers?
b. Narrow issues:
i. Whether there is any property in news?
ii. Whether any such property survives first publication?
iii. Whether INS’ sale of news gathered and distributed by AP constitutes unfair
competition?
7. Held:
a. Broad – Yes, AP is entitled to an injunction against INS because its use of news copied from
bulletin boards and early editions of AP member papers constitutes misappropriation, a
species of unfair competition.
b. Narrow :
i. It doesn’t matter whether AP has a property interest in news it gathered. This case
turns upon the issue of unfair competition.
ii. It depends; as to members of the public, no. As between AP and INS, competitors in
the news gathering and distribution business, yes.
iii. Yes, INS’s sale and distribution of news gathered and distributed by AP (members)
and collected by INS from bulletin boards and early edition papers constituted
misappropriation which is a type of unfair competition.
8. Reasoning:
a. INS’ practice of collecting news from bulletin boards and early editions of the AP’s member
newspapers constituted misappropriation, and, therefore, unfair competition which could
be enjoined.
b. The court bunts on the issue of whether news is property saying, “We need spend no time,
however, upon the general question of property in news matter at common law, or the
application of the copyright act, since it seems to us the case must turn upon the question of
unfair competition in business.” (234 – 235).
c. On the issue of whether any property in news expires upon first publication, as to the public,
yes. But, as between these parties, “it must be regarded as quasi property, irrespective of
the rights of either as against the public.” (236)
d. The test that applies to the public (i.e., once published the news may be copied) does not
apply between INS and AP. To apply that test here would allow INS to benefit unfairly from
the work and expense of AP.
e. The classic form of unfair competition is misrepresentation defined as one party attempting
to pass off its goods as the goods of another. Here, INS is doing the opposite, passing off the
news gathered by AP as its own. This is misappropriation and no less unfair competition
even though its not the classic case of misrepresentation.
9. Disposition: Circuit Court affirmed. District Court directed to issue an injunction against INS’s
collection and distribution of news gathered by AP (members) from bulletin boards and early
editions of newspapers.
10. Commentary:
a. Concurrence (Holmes): (1) There is no property interest in (uncopyrighted) news; (2)
misrepresentation is unfair trade because “it tends to give the defendant an advantage in
his competition . . . and it is thought to be undesirable that an advantage should be gained
in this way.” (247); (3) making the representation that plaintiff’s product is defendant’s is,
likewise, unfair competition; (4) this misstatement “can be corrected by stating the truth;
and a suitable acknowledgement of the source is all that plaintiff can require.” (248)
b. Dissent (Brandeis): (1) The sweat of the brow argument that the majority espouses is not
sufficient to lead to an injunction against INS’ collection and subsequent distribution of
news from bulletin boards and early editions of newspapers; (2) “The general rule of law is,
that the noblest of human productions – knowledge, truths ascertained, conceptions, and
ideas – become, after voluntary communication to others, free as the air to common use.”
(250).; (3) Brandeis sees the court’s decision as broadening unfair competition.
c. Important vocabulary:
i. Publici juris: of public right
ii. Injunction: a judicial process or order requiring the person or persons to whom it is
directed to do a particular act or to refrain from doing a particular act.
iii. Sic utere tuo: Sic Utera Tuo Ut Alienam Non Laedas Definition - use your property
in such a fashion so as not to disturb others