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'Hot news doctrine' misses its day in court as agency settles AP case

A 90 year old protection for the facts in news stories will not be tested in court after a small news agency admitted taking and using material from a major news agency and paid compensation to settle the case.14 Jul 2009

The 90 year old, court-created 'hot news doctrine' was controversially resurrected by Associated Press (AP) last year when it sued regional news operation All Headline News (AHN) over its reuse of AP's material.

AHN has now settled the case, paid an un-named sum to AP and admitted that it "improperly used" AP's content.

The doctrine was created by the US Supreme Court in 1918 when AP argued that it had invested so much in bringing back news from the first World War that it should be able to stop other news outlets using its facts before it had a protected period in which it could earn advantage from them.

It had sued a rival wire service over its use of the information, and the Court agreed that a quasi-property right should surround the information while it retained its value.

The doctrine is unusual because it gives the owner of information rights over a fact, however it is expressed. Copyright law does not protect facts or raw information.

The doctrine was federal law but a later ruling changed that, though states were free to retain it on their statute books. New York did keep the law, and it was in New York that the AP case against ANH was taken.

The settlement of the case, though, means that the doctrine will now not be tested. The settlement announcement emphasised that the case had been allowed to proceed as a 'hot news' challenge, though that falls short of a full court reaffirmation of the doctrine.

"As a result of the lawsuit, and as part of the settlement, the defendants agreed that they would not make competitive use of content or expression from AP stories," said a joint statement from AP and ANH. "Defendants acknowledge there were many instances in which AHN improperly used AP’s content without AP’s consent."

"Defendants further acknowledge the tort of 'hot news misappropriation' has been upheld by other courts and was ruled applicable in this case by U.S. District Court Judge P. Kevin Castel," it said.

"AP invests hundreds of millions of dollars to gather and to distribute essential breaking news worldwide that customers legitimately access and use by payment of a license fee," said AP associate general counsel for intellectual property, Laura Malone.

"Unauthorized use of these proprietary news reports by copying or rewriting published AP news stories is inimical to the interests of AP and its legitimate licensees," she said.

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