The following is a guest post by Brad Greenberg, counsel for policy and international affairs.
This month marks the hundredth anniversary of oral arguments in the seminal U.S. Supreme Court case of International News Service v. Associated Press (1918), which established the federal common law doctrine of “hot news” misappropriation. This anniversary comes at a time when the news business continues to search for solutions to a once-incredibly stable business model that was upended by the digital revolution.
In INS v. AP, the Supreme Court expressed a clear concern that the press be compensated for at least a portion of its social contributions. Copyright law—not to mention digital technology—was not at issue, but the Court still found the rival news service INS liable for taking AP wire stories and selling them to INS subscribers. This, the Court held, was a misappropriation of AP’s “quasi property” in time-sensitive news—and therefore commercially valuable—news reports.
Though not available to the Associated Press in 1918 (due to both to complexities of the Copyright Act of 1909 and the fact that some of the materials that INS took and then sold were, well, facts), copyright law is an important vehicle for ensuring that the press is compensated—or, in IP parlance, that they have incentives to write, publish, and disseminate information.
Our founding fathers saw copyright as a crucial vehicle for creating a free press. In England, the 1710 enactment of the Statute of Anne—the matriarch of copyright laws—unshackled publishers from the restrictions of a system that limited publishing to those who had received printing privileges from the Crown. Copyright law helped curb government censorship and at the same time provided new voices with economic incentives.
This history was well-known to the Framers of the U.S. Constitution, in which we find both the First Amendment protection against “abridging the freedom of speech, or of the press,” and, in Article I, the Progress Clause, which authorizes Congress “[t]o promote the Progress of Science and useful Arts” by providing patent and copyright protection. In fact, some Framers argued that a First Amendment was unnecessary because having a publishing world based on copyright law and market incentives, rather than printing privileges, would, per the 1787 speech of James Wilson, a Federalist delegate to the Constitutional Convention, strip the government of the ability to “regulate literary publications.”
The Framers chose both rights, and the connection between copyright law and a free press continues today. As the Supreme Court said in its 1985 opinion in Harper & Row Publishers, Inc. v. Nation Enterprises, “[i]n our haste to disseminate news, it should not be forgotten that the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.”
As a former reporter, the economic challenges facing the news industry are not mere abstraction to me. I saw it in my newsrooms; I felt it as colleagues changed careers, and eventually I did the same. And as an occasional scholar of information law and policy, I’m all too familiar with the role an economically healthy news industry—one with a diversity of voices and a multitude of independent newsgatherers—plays in supporting democratic self-governance.
Indeed, the U.S. Supreme Court has long recognized this too.