The Next Bad Thing?

What if you could own the facts of the news?…..  Would that save the news industry?

Hot news: The next bad thing

By James Boyle

Published: March 31 2010 23:03 | Last updated: March 31 2010 23:03

Entrepreneurs and venture capitalists spend a lot of time trying to figure out the next big thing; the new trend, product or web service that will take us by storm. Intellectual property scholars are a little different. We spend a lot of time wondering about the next bad thing.

What will be the latest empirically ungrounded expansion of rights, conferring monopoly rents on market incumbents with scant regard to unintended consequences?

Recent hearings on the future of the news industry at the US Federal Trade Commission (full disclosure: I was an invited participant) signalled the arrival of a new candidate. Newspapers are lobbying for a new federal intellectual property right over “hot news.” European equivalents have also been proposed.

Sadly, the “hot news” right is not as racy as it sounds. It does not offer legal protection for scantily clad celebrities. This is a legal right that extends far beyond copyright law to cover the facts of the news themselves; if I break the story, the hot news right allows me to stop competitors from repeating the facts – at least for as long as the story has immediate currency.

The right has existed in US state common law since a 1918 case called International New Services v. Associated Press. The British government did not like the sceptical coverage of the First World War by US newspapers owned by Randolph Hearst (the real life Citizen Kane). It banned them from using the transatlantic cables to report the news – an early 20th century version of the Great Firewall of China. In the process, the British government conveyed an effective monopoly of European coverage on the Associated Press.

Seeking to get around that monopoly, but also interested in making a buck, Hearst’s International News Services resorted to getting early editions of AP newspapers, or taking news from bulletin boards, collecting the facts and rewriting the stories with their own particular editorial slant. None of these acts were violations of copyright law. The case went to the Supreme Court which held that there could be a “quasi property right” (which is legal jargon for “we just made this thing up”) in hot news, at least against AP’s competitors.

Holmes and Brandeis – two of the most famous Supreme Court Justices of the 20th century – both dissented. Brandeis famously commented that the general rule of law was that knowledge and ideas, the “noblest productions of the human mind” should, after voluntary communication to others, be “free as the air to common use.”

Brandeis lost this one. Still, the effects were not huge. The hot news doctrine became a relatively limited right in a few states – including New York. It was occasionally invoked, often to obviously anti-competitive ends, such as unsuccessful attempts to claim that sports leagues “own” the scores from those leagues and can prohibit others revealing them. But because of constitutional limitations on what states can do to affect the choices made by Federal copyright law, its impact was relatively small,

Fast forward 90 years. The newspaper industry is struggling in the online world. You might think that it is not struggling because its content is being illicitly copied but because it has no good business model to make money off entirely licit, legal uses of its content. The momentary eyeball tracks across news pages just do not translate into enough subscriptions, advertisement clicks, or classified ad sales. You would be right.

In some cases newspapers have lost business because other services now do things better than they did – E-Trade, Edmunds.com or Zoopla provide more in depth information on mutual funds, cars or houses for sale than the sections of the newspaper devoted to them ever could. In the process, those sites take the lucrative targeted advertisements with them.

In other cases, the new services do things more cheaply – Craigslist classified advertisements is an example. And finally, the method of delivery changes the time readers spend on the news pages. Hal Varian – chief economist at Google – presented data at the FTC hearing showing that people read the news largely at work, sixty or ninety seconds at a time, hardly long enough to make much money with advertisements. His data also showed that the current collapse in revenues from subscription and advertising is part of a long term trend that began long before the web.

This is a complex reality. It may be that new business models – subscription sites, links to new devices such as the Kindle and the iPad – can revive newspapers. It may be that we will develop other methods to support investigative journalism – interesting experiments are already under way. But it would be an enormous diversion to let these struggles somehow convince us that the newspapers’ ills are the result of illicit copying and can be cured by yet another new intellectual property right.

Yes, there are legal aggregation sites – such as Google news – which contain short snippets of news stories. If newspapers want their content removed from these sites they can do so easily by simply changing the data contained in something called the robots.txt file. Google or Yahoo will no longer index their pages.

But the newspapers do not want to do this, because legal aggregators drive a great deal of traffic to them. And in any event, they do not need a new right to stop the practice. There are also sites that do illegally copy the entire contents, or the entire article. Their behaviour is already illegal under copyright law. (And in any event has a small effect on revenues. Do you read the FT stories at some shady site or at the FT?)

So the new right would have no effect on the real problem newspapers face. And it would give them almost no protection that they do not already have either through law or technology. What would it do? It would cast a pall of fear over free speech. Is my blog or twitter feed allowed to say that there has been an earthquake or that some political scandal has erupted? Or must I buy a license to say so? After all, in the new world bloggers are “competitors” as news sources.

In fact, the right would produce all kinds of effects the newspapers have not thought about. They are assuming that this new right will only be wielded by them. Not so. Think of political activists who break a story – for example the young conservative filmmakers who produced devastating information on the operation of the organization ACORN. They are a news source. They might think it was a great idea selectively to decide which news organizations got to report that story, at least as long as it was “hot.” Does that sound attractive? I think not. And then think of the difficulties of proof, the possibility of chilling of speech by wrongly claiming to be its source. Implementation would be a nightmare.

So there it is. Our next bad idea. In some ways it shares many characteristics with other recent expansions of intellectual property law. It is unsupported by data and it has unintended and anti-competitive consequences. The sad difference is that newspapers truly do face a wrenching future and the debate over how to pay for high quality investigative journalism is an important one. Unfortunately, the hot news right would do nothing to help solve the real problems newspapers face.

Instead, it would do much to impede the benign effects that the internet has on news gathering and distribution and to chill the social media that will surely be part of the marketplace of ideas in the future. The negative effects of a new legal monopoly without even the benefits to the current market incumbents! Which is what makes the proposal all the more poignant.

The nice folk at the Financial Times, where I write a column, have an enlightened attitude towards copyright.  When they arranged for me to be a columnist, they agreed to let me keep the copyright and to make articles available  under a Creative Commons license.  This is one of my recent columns for the FT.  If you find it of interest, you might want to reward them by checking out https://www.ft.com/techforum There is lots more there.

Friday, April 2nd, 2010 Uncategorized

6 Comments to The Next Bad Thing?

  1. News, as we know it, is dying. Just as Paper-based encyclopedias gave way to CD-ROMS which gave way to the Internet (can you say “Wikipedia”?)

    The meteor has hit. The Dinosaurs will soon be extinct. And the world will change. That is the way of things.

  2. Wizard Prang on April 5th, 2010
  3. […] Hot news: The next bad thing Yes, there are legal aggregation sites – such as Google news – which contain short snippets of news stories. If newspapers want their content removed from these sites they can do so easily by simply changing the data contained in something called the robots.txt file. Google or Yahoo will no longer index their pages. […]

  4. Links 5/4/2010: GNOME 3 Mockups, KDE 4.4.2 in Mandriva 2010 | Techrights on April 5th, 2010
  5. […] lawyers pushing for the return of hot news, or for other forms of copyright to protect news, may end up regretting that before too long. Beyond the fact that full copying is already illegal under copyright law and the lack of any […]

  6. Newspapers Pushing For Hot News Doctrine May Find It Comes Back To Bite Them | Gabbur on April 8th, 2010
  7. […] to discourage Stoklasa from filing a counter-notice. The videos, however, have been restored.3: Hot news: The Next Bad ThingFinally today, commentator James Boyle has some thoughts on “Hot News”, a legal […]

  8. 3 Count: DEB Done | PlagiarismToday on April 8th, 2010
  9. […] Hot news: The next bad thing Sadly, the “hot news” right is not as racy as it sounds. It does not offer legal protection for scantily clad celebrities. This is a legal right that extends far beyond copyright law to cover the facts of the news themselves; if I break the story, the hot news right allows me to stop competitors from repeating the facts – at least for as long as the story has immediate currency. […]

  10. Links 8/4/2010: New Mandriva CEO, Debian Mini Conference in Germany | Techrights on April 8th, 2010
  11. […] tam tikrą laiką nuo įvykio aprašyti jį tiems, kas nespėjo pirmieji. Tačiau ne veltui žmonės juokiasi iš sumanymo – žurnalistas (beveik) niekada nebūna arčiausiai įvykio – arčiausiai įvykio būna žmogus […]

  12. Blogos ir geros naujienos – nuo kurių pradėti? on April 12th, 2010

From the Blog

  • The Line: AI & The Future Of Personhood

    James Boyle

    My new book, The Line: AI and the Future of Personhood, will be published by MIT Press in 2024 under a Creative Commons License and MIT is allowing me to post preprint excerpts. The book is a labor of (mainly) love — together with the familiar accompanying authorial side-dishes: excited discovery, frustration, writing block, self-loathing, epiphany, and massive societal change that means you have to rewrite everything. So just the usual stuff. It is not a run-of-the-mill academic discussion, though. For one thing, I hope it is readable. It might even occasionally make you laugh. For another, I will spend as much time on art and constitutional law as I do on ethics, treat movies and books and the heated debates about corporate personality as seriously as I do the abstract philosophy of personhood. These are the cultural materials with which we will build our new conceptions of personhood, elaborate our fears and our empathy, stress our commonalities and our differences. To download the first two chapters, click here. For a sample, read on…..


    read more
  • Everything You Know About §230 Is Wrong (But Why?)

    James Boyle, Oct 25th, 2021

    There are a few useful phrases that allow one instantly to classify a statement.  For example, if any piece of popular health advice contains the word “toxins,” you can probably disregard it.  Other than, “avoid ingesting them.” Another such heuristic is that if someone tells you “I just read something about §230..” the smart bet is to respond, “you were probably misinformed.” 

    read more

  • Free, Open, Intellectual Property Textbook

    Jennifer Jenkins and I have just published the 2021 edition of our free, Creative Commons licensed, Intellectual Property textbook.

    read more

  • ‘Dumping: On Law Reviews’. The Green Bag

    I will probably never be published in a law review ever again after writing this.  I find myself curiously untroubled by the thought.  

    read more

  • Mark of the Devil: The University as Brand Bully

    I teach at Duke University, an institution I love.  The reverse may not be true however, at least after my most recent paper (with Jennifer Jenkins) — Mark of the Devil:  The University as Brand Bully.  (forthcoming in the Fordham Intellectual Property and Entertainment Law Journal).  The paper is about the university most frequently accused of being a “trademark bully” — an entity that makes assertions and threats far beyond what trademark law actually allows, something that is all too common, with costs to both competition and free speech.   Unfortunately, that university is our own — Duke. 

    read more

  • Tragedy/Comedy of the Commons @ 50

    The Economist was kind enough to ask me to write an article commemorating the 50th anniversary of Garrett Hardin’s Tragedy of the Commons.  ““THE ONLY way we can preserve and nurture other and more precious freedoms is by relinquishing the freedom to breed.” This ominous sentence comes not from China’s one-child policy but from one of the 20th century’s most influential—and misunderstood—essays in economics. “The tragedy of the commons”, by Garrett Hardin, marks its 50th anniversary on December 13th.”  Read the rest here.

  • Theft: A History of Music — Free Comic

    title

    read more

  • (When) Is Copyright Reform Possible?

    I am posting here a draft of a chapter for Ruth Okediji’s forthcoming book on the possibilities of international intellectual property reform.  In my case, the article recounts the lessons I learned from being part of the Hargreaves Review of Intellectual Property in the UK.

    “In the five months we have had to compile the Review, we have sought never to lose sight of David Cameron’s “exam question”. Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth? The short answer is: yes. We have found that the UK’s intellectual property framework, especially with regard to copyright, is falling behind what is needed. Copyright, once the exclusive concern of authors and their publishers, is today preventing medical researchers studying data and text in pursuit of new treatments. Copying has become basic to numerous industrial processes, as well as to a burgeoning service economy based upon the internet. The UK cannot afford to let a legal framework designed around artists impede vigorous participation in these emerging business sectors.” Ian Hargreaves, Foreword: Hargreaves Review (2011)

    Read the chapter.

  • Apple Updates — A Comic

    sampleEver been utterly frustrated, made furious, by an Apple upgrade that made things worse?  This post is for you.  (With apologies to Randall Munroe.)

    read more

  • Open Coursebook in Intellectual Property

    Cover of Intellectual Property: Law & the Information Society and link to purchase at Amazon.comDuke’s Center for the Study of the Public Domain is announcing the publication of Intellectual Property: Law & the Information Society—Cases and Materials by James Boyle and Jennifer Jenkins. This book, the first in a series of Duke Open Coursebooks, is available for free download under a Creative Commons license. If you do not want to use the entire casebook you can view and download the individual chapters (in a variety of formats) here. It can also be purchased in a glossy paperback print edition for $29.99, $130 cheaper than other intellectual property casebooks.

    read more

  • So you’ve invented fantasy football, now what?

    We are posting excerpts from our new coursebook Intellectual Property: Law and the Information Society which will be published in two weeks is out now! It will be is of course  freely downloadable, and sold in paper for about $135 less than other casebooks.  (And yes, it will include  discussions  of whether one should ever use the term “intellectual property.” )  The book is full of practice examples..  This is one from Chapter One, on the theories behind intellectual property: “What if you came up with the idea of Fantasy Football?”  No legal knowledge necessary.  Why don’t you test your argumentative abilities…?

    read more

  • Free/Low Cost Intellectual Property Statutory Supplement

    Today, we are proud to announce the publication of our 2014 Intellectual Property  Statutory Supplement as a freely downloadable Open Course Book. Statutes Cover  It offers the full text of the Federal Trademark, Copyright and Patent statutes (including edits detailing the changes made by the America Invents Act.)  It also has a number of important international treaties and a  chart which compares the various types of Federal intellectual property rights — their constitutional basis, subject matter, length, exceptions and so on.You can see it here in print, or download it for free, here

    read more

  • Persnickety Snit

    This is the fourth in a series of postings of material drawn from our forthcoming, Creative Commons licensed, open coursebook on Intellectual Property.  It is about lawyers and language. 

    read more

  • Macaulay on Copyright

    Macaulay’s 1841 speech to the House of Commons on copyright law is often cited and not much read.  In fact, the phrase “cite unseen” gains a new meaning.  That is a shame, because it is masterful.  (And funny.) One fascinating moment?  When Macaulay warns that copyright maximalism will lead to a future of rampant illegality, as all happily violate a law that is presumed to have lost all moral legitimacy.

    At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot…  Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create.

    The legal change he thought would do that?  Extending copyright to the absurd length of life plus 50 years.  (It is now life plus 70).  Ah, Thomas, if only you could have been there for the Sonny Bono Term Extension debates.

    read more

  • Mark Twain on the Need for Perpetual Copyright

    This is the second in a series of postings of material drawn from our forthcoming, Creative Commons licensed, open coursebook on Intellectual Property.  The first was Victor Hugo: Guardian of the Public Domain The book will be released in late August.

    In 1906, Samuel Clemens (who we remember better by his pen name Mark Twain) addressed Congress on the reform of the Copyright Act.  Delicious.

    read more

  • Victor Hugo: Guardian of the Public Domain

    Jennifer Jenkins and I are frantically working to put together a new open casebook on Intellectual Property Law.  (It will be available, in beta version, this Fall under a CC license, and freely downloadable in multiple formats of course.  Plus it should sell in paper form for about $130 less than the competing casebooks. The accompanying statutory supplement will be 1/5  the price of most statutory supplements — also freely downloadable.)  More about that later.  While assembling the materials for a casebook, one gets to revisit the archives, reread the great writers.  Today I was revisiting Victor Hugo.  Hugo was a fabulous — inspiring, passionate — proponent of the rights of authors, and the connection of those rights to free expression and free ideas.

    read more

  • “We Need To Start Seeing Other Futures..”

    Today is the second day of “Copyright Week!” Talk about a lede. That sentence has all the inherent excitement of “Periodontal Health Awareness Week” or “‘Hug Your Proctologist! No, After He’s Washed His Hands’ Week.” And that’s a shame. Copyright Week is a week devoted to our relationship with our own culture. Hint: things aren’t going well. The relationship is on the rocks.

    read more

  • Discussion: “The Foolish War Against Song-Lyric Websites”

    Professor Alex Sayf Cummings, author of a fascinating book called Democracy of Sound: Music Piracy and the Remaking of American Copyright in the 20th Century (recommended as a  thought-provoking read)  has an interesting  post up about attempts to shut down music lyric sites such as Rapgenius.com.

    read more

  • The Top Ten List of a Conference Planner

    Academics (and others) arrange conferences.  Perfectly normal people are invited to those conferences to speak.  Most of them are just as charming as can be… but then there are the special ones.  This Top 10 List of the special people one has to respond to is devoted to all conference planners everywhere.  Hold your heads up high.  After this, purgatory should be a snap.

    read more

  • (EM)I Has A Dream

    EM(I) Has A DreamAugust 28th, 2013 is the 50th anniversary of Martin Luther King’s “I Have a Dream” speech. The copyright in the speech is administered by EMI, with the consent of the King family. Thus the speech may not be freely played on video or reproduced and costlessly distributed across the nation — even today. Its transient appearance depends on the copyright owner’s momentary sufferance, not public right. It may disappear from your video library tomorrow. It has even been licensed to advertise commercial products, including cars and mobile phone plans.

    read more

  • The Prosecution of Aaron: A Response to Orin Kerr

    Aaron Swartz committed suicide last week.  He was 26, a genius and my friend.  Not a really good friend, but someone I had worked with off and on for 11 years, liked a lot, had laughed with frequently, occasionally shaken my head over and deeply admired.

    read more

  • The Hargreaves Review

    An Intellectual Property System for the Internet Age

    James Boyle

    In November 2010, the Prime Minister commissioned a review of the Britain’s intellectual property laws and their effect on economic growth, quoting the founders of Google that “they could never have started their company in Britain” because of a lack of flexibility in British copyright..  Mr. Cameron wanted to see if we could have UK intellectual property laws “fit for the Internet age.”   Today the Review will be published. Its conclusion?  “Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth?  The short answer is: yes.” Those words are from Professor Ian Hargreaves, head of the Review.   (Full disclosure: I was on the Review’s panel of expert advisors.)

    read more

  • Keith Aoki — A Remembrance Book

    A slideshow and downloadable book remembering Keith in words and pictures.  You can order a glossy, high quality copy of the book itself here from Createspace or here from Amazon.  We tried to make it as beautiful as something Keith would create.  We failed. But we came close; have a look at how striking it is… all because of Keith’s art.

    read more

  • Now THAT is how you teach a class

    read more

  • RIP, Keith Aoki

    Our friend, colleague, co-author and brilliant artist and scholar Keith Aoki died yesterday in his house in Sacramento.  He was 55 years old.

    read more

  • Follow thepublicdomain on Twitter.