Struggling news companies from the U.S. to Europe have been floating a variety of creative ideas for government protection: direct subsidies, new tax status, restrictions on public-media competitors, antitrust exemptions enabling consolidation or price fixing, extensions of copyright, and restrictions on fair use.
In the U.S., the most creative and perhaps dangerous defence yet is an attempt to resurrect the doctrine of “hot news” to prevent rivals from repeating news until it has cooled. It began in 1918: after reporting on British war losses, Hearst's International News Service was barred from using Allied telegraph lines. So INS rewrote Associated Press news for west coast newspapers. AP sued and won. Now the long-dormant legal notion is resurrected in the case of four Wall Street firms v theflyonthewall.com, a website that published ratings from the brokers' analysts. The brokers argue the ratings belong to them, at least for a few hours; the site argues it is merely reporting news of them. The site lost and on appeal, friend-of-the-court briefs have been filed on one side by Google and Twitter and on the other by 14 news giants, including the New York Times, the Washington Post, AP, and Agence France-Presse. The news companies are latching on to hot news in the hope of restricting aggregators.
But the idea of hot news is laughably antiquated. Tom Glocer, the head of Thomson Reuters, has said his news is hot for “milliseconds.” The Google/Twitter brief says: “In a world of modern communications technology, where anyone with a cell phone may disseminate news throughout the world even as it is occurring, the notion that a single media outlet should have a monopoly on time-sensitive facts is not only contrary to law, it is, as a practical matter, futile.” In their brief, the legacy companies argue hot news is “necessary to protect the news industry's incentive to gather and report news ... ” They protest that “free riders” may repeat their news at lower cost. “One of the greatest concerns among news originators,” they say, “is inexpensive technology that allows easy aggregation of news.” The legacy companies nowhere acknowledge the economic value of links to their content.
The news companies complain of papers going bankrupt, not acknowledging that that was largely a result of debt and mismanagement. They say they are not objecting to use of each other's facts in occasional stories — as they all do it — but instead the “systematic” (read: Googley) gathering of their news. They do not make reference to the tools that enable them to block search engines and aggregators, as News Corp has done at the Times.
On the other side, Google and Twitter cite a 1991 case, Feist Publications v Rural Telephone, in which the court said: “The first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence.” The internet companies say the Feist court rejected “the notion that ‘sweat of the brow' can itself create intellectual property rights. They add: “The primary objective of copyright is not to reward the labour of authors but to ‘promote the progress of science and useful arts.'” Facts have never been subject to copyright; they cannot be owned. “Facts,” Google and Twitter say, “must remain in the public domain, free from any restraint or encumbrance.” And: “Allowing the first publisher to prevent others from copying such information would defeat the objectives of copyright by impeding rather than advancing the progress of knowledge.” Isn't the progress of knowledge the business of news? On a practical level, Google and Twitter argue that the fear of litigation would “chill the lawful dissemination of important news by fostering uncertainty among news outlets as to how long they must ‘sit' on a story before they are free of a potential ‘hot news' claim.”
It is nothing short of shocking that news organisations are endorsing a form of court-supervised prior restraint and that they would restrict fair use yet they all depend upon it. Google and Twitter say “the modern ubiquity of multiple news platforms renders ‘hot news' misappropriation an anachronism, aimed at muzzling all but the most powerful media companies. In a world of citizen journalists and commentators, online news organisations, and broadcasters who compete 24 hours a day, news can no longer be contained for any meaningful amount of time.” That is what we mean when we say news wants to be free: Facts must remain free to comment on, build upon, and pass along. — © Guardian Newspapers Limited, 2010