Finishing off class 1
A quick summary
• ‘INS would take AP’s hot news stories about World War I
battles from publicly distributed New York newspapers that
subscribed to the AP service. INS would then telegraph
the story to the West Coast to Hearst newspapers, which
would print the stories, sometimes ahead of the West
Coast AP newspaper subscribers. Thus, INS appropriated
hot news stories that had been gathered by AP at great
expense and effort. There was usually no copyright
infringement, for there was usually no copying of the exact
words of an AP dispatch; rather there was an
appropriation of the underlying factual information.’
What’s wrong with that?
• AP had three complaints, this was only
one of them
• AP did not gather War news at great
expense and effort, it just digested press
briefings. Does this affect whether news
is ‘property’?
The three complaints
• INS had bribed a telegraph operator to
pass on confidential AP news items
• INS took AP bulletins from a Hearst
paper which subscribed to AP
• INS took published AP news from early
East Coast editions
What did AP want?
• An injunction to stop INS copying in the
future. (An interim injunction).
• A binding precedent that news is
‘property’ or at least that it is protected by
law in some way
• What’s the difference? Why both?
Precedent
• Every decided case contributes to the
body of case law or precedent, but ....
• ... the first case to decide a particular
legal issue is especially important. It is
the first precedent on that point
• Other courts later will probably (perhaps
must) follow it. Depends on status of
previous court in hierarchy
Injunction
• An injunction is binding on a specific
party as a result of a court decision
• INS was subjected to an ‘interim’ or
‘preliminary’ injunction, i.e. pre-trial
• Injunction binds INS specifically, on the
facts of the case. Precedent sets rule of
law binding (in principle) in future cases
against anyone
Chicago days
• AP was based in Chicago until 1900, and
incorporated in state of Illinois
• Stone, then editor of the Chicago Daily
News, was frequently pirated by the
McMullen brothers, owners of the rival
Post and MaiL
A crisis in Serbia
• ‘The men, young and old, go through the
streets shouting for bread, cursing the
rich for not coming to their aid. A few
days ago the mayor of the provincial
town of Sovik issued a proclamation
ending with the ominous words: “Er us
siht la Etsll iws nel lum cmeht”(the
municipality cannot aid).’
No crisis after all
• “Er us siht la Etsll iws nel lum cmeht”(the
municipality cannot aid).
• “The McMullens will steal this sure.”
• And they did. What about the others?
But not all one way
• Tribune Co. v. Associated Press, 116 F. 126,
127(C.C.N.D. Ill.1900). The court found that this
controversy between “the rights of the Tribune
Company to the fruits of its enterprise and
expenditure under its contract arrangement with
the Times, and, on the other hand, the rights of
the public to the news matter thus published in
the leading English newspaper” ultimately
turned on copyright law.
Telegraph messages
• National Telegraph News Company v.
Western Union Telegraph Company, 119
F. 294 (7th Cir. 1902)
• Protected transient news transmitted by
telegraph for tickertape machines against
wire-tapping by bribed employee of
Western Union
Western Union
• Judge Grosscup saw that Western Union was no different
from a news service such as AP. Information—be it a sports
score or an account of starvation in a foreign country—is
itself free for anyone to gather. No one can claim an
ownership interest in it at the source. But the news can be
conveyed quickly across great distances only if a large
infrastructure is in place. No one will build and maintain this
infrastructure if the information cannot be protected at the
other end. Western Union had a right to enjoin people who
sought unauthorized access to the information sent out over
its lines. (Baird)
BoT v Christie (S Ct)
• The Supreme Court adopted the same position in
Board of Trade v. Christie Grain & Stock Co., 198
U.S. 236 (1905):
• “The plaintiff does not lose its rights by
communicating the result to persons, even if many,
in confidential relations to itself, under a contract not
to make it public, and strangers to the trust will be
restrained from getting at the knowledge by inducing
a breach of trust and using knowledge obtained by
such a breach.”
AP as a ‘trust’
• Inter-Ocean v Associated Press 56 N.E.
822 (What does this tell you)?
• S Ct of Illinois held that AP in breach of
Antitrust Acts, ordered AP to admit I-O as
member
• AP never did. It dissolved, and new
company incorporated in New York
Think about this
• As a decision between the parties. Is oldAP the same as new-AP?
• Does I-O have any rights against new-AP
as a result of the decision?
• Does decision have any useful effect as a
precedent?
Back to AP v INS in 1916
The three complaints
• INS had bribed a telegraph operator to
pass on confidential AP news items
• INS took AP bulletins from a Hearst
paper which subscribed to AP
• INS took published AP news from early
East Coast editions
How to decide case?
• No civil or criminal code, no statute, no
(single) source of law
• What about case law? i.e. ‘precedents’
• First, categorise and analyse the
cause(s) of action, but bear in mind the
ultimate remedies AP sought
1: Bribery
• Criminal law? Perhaps, but are we
interested?
• Not much. Why not? Little point in
prosecuting individuals.
• What we want is: civil c/a; against INS as
such; giving rise to injunction
1 and 2: Interference
• There is a tort of interference with
contract which was well-established
• How useful in complaints 1 and 2?
• What are its shortcomings?
• On the facts of INS v AP?
• In the long term, from AP’s point of
view?
1 and 2: Confidence
• There is also an equitable doctrine of
breach of confidence
• How useful in complaints 1 and 2?
• What are its shortcomings?
• On the facts of INS v AP?
• In the long term, from AP’s point of
view?
1 and 2: Where are we?
• How useful would it have been to win
complaints 1 and 2 individually?
• Would this have stopped INS copying
War news in the near future?
• Would it have delivered the precedent AP
and Stone wanted?
• What can we do about complaint 3?
What about copyright?
• Remember the case about the London
Times?
• Stone’s Chicago paper had been allowed
to copy news items from the Times,
although another Chicago paper had paid
for them. How so?
Copyright
• US law has had provision for copyright
since the original constitution
• Congress has power to legislate for
protection of ‘writings’ of authors
• One effect is to pre-empt inconsistent
action by the states
Copyright, US, 1916
• Were AP news items protected by
copyright? Two problems
• Copyright was not automatic. It
depended on registration and ‘notice’
• Copyright did not effectively protect
purely factual material, except against
word-for-word copying
Copyright, US, 1916
• So copyright did not benefit AP. Was that
the end of the story?
• No. Copyright policy was that writings
which were not registered before
publication,entered the public domain
and could be freely copied
The copyright problem
• Copyright could not benefit AP because
impossible to register news items in time,
before publication
• Treating news items as ‘property’ on any
other basis looked like defying Congress
by creating a sort-of-copyright, where no
copyright ought to exist
The way out
• Supreme Court wanted to protect AP’s
news items for reasons of fairness and
abstract justice, and/or social policy
• But cannot create a true property right in
news, because that that would be a
copyright in disguise
The way out
• Result: treat copying as act of unfair
competition. AP’s right then effective
against INS and competitors, but not
against public and world at large. Hence
it is not a true property right
• Where does this come from?
Where from?
• NOT from Copyright Act or Constitution
(more later ...)
• Partly by taking existing precedents one
step further; partly from inherent power of
common law courts (not just S Ct) to
create new rights and obligations as part
of common law
Look at INS Supreme
Court decision again
INS v AP, Pitney J:
•‘The right of the purchaser of a single
newspaper to spread knowledge of its contents
... may be admitted; but to transmit that news for
commercial use, in competition with
complainant—which is what defendant has done
and seeks to justify—is a very different matter.’
INS v AP, Pitney J
•‘[D]efendant ... is taking material that has been
acquired by complainant as the result of
organization and the expenditure of labor, skill,
and money, and which is salable by complainant
for money, and ... is endeavoring to reap where
it has not sown, and by disposing of it to
newspapers that are competitors of
complainant’s members is appropriating to itself
the harvest of those who have sown.’
INS v AP, Pitney J
•‘Stripped of all disguises, the process amounts to
an unauthorized interference with the operation of
complainant’s legitimate business precisely at the
point where the profit is to be reaped, in order to
divert a material portion of the profit from those
who have earned it to those who have not; with
special advantage to defendant in the competition
because of the fact that it is not burdened with any
part of the expense of gathering the news.’
INS summed up
• No absolute ‘property’ exists in news
• Action lay against INS because it was a
competitor, hence action is for ‘unfair
competition’
• Does same principle apply more
generally?
How is this different?
• But is this really copyright ‘by the back
door’?
• Motivation ‘reaping without sowing’ is
very like that for copyright. So is
economic rationale
• Does calling it ‘unfair competition’ make
enough difference?
How about this?
• ‘The law of copyright rests on a very
clear principle: that anyone who by his or
her own skill and labour creates an
original work of whatever character shall,
for a limited period, enjoy an exclusive
right to copy that work. No one else may
for a season reap what the copyright
owner has sown.’ (UK HoL, Designers Guild
case)
Cheney v Doris
• Case in the Second Circuit Court of Appeals.
(1929) 35 F.2d 279
• Cheney were silk fabric manufacturers, every
season they would introduce new designs. Only a
few of these were successful, the rest flopped. This
was too unpredictable to make protecting each
design individually cost-effective
• Doris copied only the best-selling designs
Cheney v Doris
• ‘Of the cases on which the plaintiff relies, the chief
is International News Service v Associated Press,
…. Although that concerned another subjectmatter—printed news dispatches—we agree that, if
it meant to lay down a general doctrine, it would
cover this case; at least, the language of the
majority opinion goes so far.’
Cheney v Doris
• ‘We do not believe that it did. While it is of course true that
law ordinarily speaks in general terms, there are cases
where the occasion is at once the justification for, and the
limit of, what is decided. This appears to us such an
instance; we think that no more was covered than situations
substantially similar to those then at bar. The difficulties of
understanding it otherwise are insuperable. We are to
suppose that the court meant to create a sort of commonlaw patent or copyright for reasons of justice. Either would
flagrantly conflict with the scheme which Congress has for
more than a century devised to cover the subject-matter.’
Remember?
• Two formulations of INS v AP
• Protection of ‘hot news’ under law of
unfair competition
• General basis for doctrine of
‘misappropriation’ in common law
• What happens next?
Post-INS timescale
• INS to Cheney
• Cheney to Erie v Tomkins
• Erie to Sears/Compco
• Sears to California v Goldstein
• Goldstein to 1976, and present
End of class 2