Hot Off the Presses: How Traditional Newspaper Journalism Can Help Reinvent the “Hot News” Misappropriation Tort in the Internet Age

Hot Off the Presses: How Traditional Newspaper Journalism Can Help Reinvent the “Hot News” Misappropriation Tort in the Internet Age

Lauren M. Gregory · 13 Vand. J. Ent. & Tech. 577

Abstract

Ironically, in an increasingly digital world, print newspapers are pinning their hopes of survival on a legal doctrine created during the telegraph era. Internet-based competitors are taking original newspaper content without permission or attribution, and the traditional Fourth Estate is taking them to court, claiming ―hot news‖ misappropriation, a nearly century-old tort protecting against free riding in the newsgathering business. In recent years, some commentators have written off common law misappropriation as obsolete due to technological advances, updates to federal copyright law, and First Amendment concerns. Courts still recognize misappropriation claims in a handful of jurisdictions, but the muddled jurisprudence in this area has yet to make much of an impact on the free riding problem in journalism today.

This Note examines the doctrinal roots of hot news misappropriation and analyzes the manner in which modern courts have strayed from the original nature and scope of its protection. The original foundation of the tort, unfair competition, has been forgotten as courts have focused too much on traditional exclusionary rights over information, bumping up against free speech concerns along the way. The author concludes that the instinctive reliance by newspapers on misappropriation is correct: The original formation of the tort is indeed relevant to the current online news market. It can help protect the investments in newsgathering made by newspapers—still the primary generators of original news content today—so that their business is not prematurely swallowed by a fledgling online news community with an infrastructure still too weak to fully satisfy the public‘s newsgathering needs. The tort should be codified, rather than left for courts to apply in traditional common law fashion, so that the law will apply uniformly across jurisdictions and allow participants in the new
market to shape their behavior accordingly. At the same time, lawmakers should leave a little room for judicial discretion in crafting remedies in individual cases, as the technology, motives, and other circumstances are bound to vary.