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A Heated News Debate: Origins of the Hot News Doctrine


Jack Shafer, editor of Microsoft's online publication, Slate, was miffed.
It was midafternoon on Feb. 29, 2000, the exit polls from the Republican presidential primary in Virginia were in, and Slate got hold of them. "I'd love to publish them, just as I have for the last three presidential primaries. But I can't," wrote Shafer in an online column for Slate. "The lawyers from Voter News Service (VNS) - the ABC News, CBS News, NBC News, Fox News, CNN, and the Associated Press media consortium that produces the exit polls - have threatened to sue Slate if we do. _ In threatening legal action against Slate, the biggest arrow VNS's lawyer drew from their quiver was a thing called the 'hot news doctrine.'  The hot news doctrine grows out of a 1918 case that prevents free-riders from pinching news from the wire services while it is still 'hot.'"[1]
 The hot news doctrine grants a limited property right in news produced by news organizations for a short period after it is published or broadcast - hence, the "hot" in hot news doctrine.
Shafer was clearly disgusted. He argued that by holding the exit polls, VNS suppressed free speech and made "hot news" a temperature of "absolute zero." He also criticized VNS member broadcasters for misleading the public and  "acting" on the air as if the race was still on when exit polls indicated the race was well over.[2]

	The hot news doctrine is known more commonly as the tort of misappropriation - the act of diverting profits from those who have earned them to those who have not.[3]
 It originated in the 1918 case, The Associated Press v. International News Service.[4] In that case, INS misappropriated news by taking it from the office bulletin boards of AP members and filing it on the INS wire. By a divided vote, the Court held that a news provider who invests money and labor in the collection of news is entitled to protection from competitors' use of that news for a limited period of time after publication. 
Since then, scholars have argued that the case changed the fundamental notions of unfair competition. Early scholars largely supported the new ruling.[5] But scholars today disagree.[6] Charles McManis in "Unfair Trade Practices," for example, wrote that misappropriation was a logical extension of the already established unfair competition principles of misrepresentation and confusion:
The principal distinguishing characteristic of the type of misappropriation recognized in the INS case is that it is not concerned with protecting contractual or confidential relations to which the misappropriator is a party; nor is it concerned with preventing public confusion as to the identity of goods or public disclosure of non-public information. The wrong is simply the appropriation of the fruits of another's investment of money, time and intellectual effort.[7]

But other scholars claim that the development of misappropriation and the hot news doctrine have grown muddled.[8]
 Some of these scholars support new legislative attempts to federalize misappropriation and clarify aspects of the hot news doctrine.[9] Others worry that a legislative approach would overprotect news and information providers and restrict the free exchange of facts and ideas.[10]
The impact of AP v. INS on today's news and information gatherers is significant, and a study of the case can offer a lens through which the current debate might be better informed.  This paper will address the history of the case by studying the Court's decision, the briefs filed by the Associated Press (AP) and International News Service (INS), the response of legal scholars shortly after the decision was made and the literature written by AP executives.  Two primary questions will be addressed: What impact did the news of the period and the growth of AP's business have on the Court's decision to grant AP a limited property right in news? What were the standards for copyright news at the time and how did they impact the Court's decision?


AP, Hearst and Failure in the Legislature

	By the time the U.S. Supreme Court heard AP v. INS, it was eighteen years after the AP's incorporation in New York and the feud among the regional APs that had threatened the cooperative's survival. The new AP had grown strong. By 1918, The Associated Press had successfully established itself as the nation's premier agency with 1,150 newspaper members, seventeen of whom represented leading papers in parts of South America.[11]
 The AP was still engaged in cartel arrangements with the state news agencies of several nations, but entry into the South American market marked the beginning of a new era. The AP began to establish its own international service, one that would become less reliant upon foreign state news agencies such as Wolff or Havas. As the AP grew, it garnered credit and praise for its new ventures. 
Just a month before the decision in AP v. INS, the AP scored a major international scoop, one that would for a long time bolster its reputation for accuracy and its importance in international affairs. World War I had engaged the news agencies in a competitive battle for news from the front and from the international capitals where the war would be decided. On November 7, 1918, the United Press announced an armistice had been signed. Revelers around the United States celebrated. As AP reporters around the globe scrambled to confirm the news, thousands of New Yorkers jammed the streets outside the AP's building on Chambers Street. The crowds grew increasingly angry as they waited for AP to confirm the news. But AP could not.
	"Our Paris bureau has failed us completely," AP news editor Jackson Elliott was reported to have said to AP general manager Melville Stone.[12] But Stone was skeptical, and while AP awaited confirmation, he ordered his men into the streets to cover the celebration. The move was prescient. Only hours later, the State Department announced there was no armistice. Four days later, the AP would get the official news that the war had ended. AP's coolness under pressure would earn the respect of a nation and new appreciation for the abilities of the cooperative.
	But coverage of war came at great cost, and the AP campaigned long and hard to ask the members to finance its men and the technology:
Covering the war has called for unprecedented expenditure of money and considerable use of the emergency reserve fund, which was accumulated for just such a purpose. It was a year of struggle with choked cables and censorship delays. The latter cause of the delay has been for the most part removed, but unhappily the cable facilities are altogether inadequate for the news demands of the day.[13]

	Traffic Chief Kent Cooper, who was in charge of AP's communications staff and technology, recognized that the cooperative needed to grow to finance the costs of new technologies and its expansion into overseas reporting. Cooper called the United States' entry into World War I "an ominous situation" for AP.[14]
 Newspapers that had never before asked for AP reports were suddenly at the door, demanding service. Many requests came from papers that were unable to become AP members because of the cooperative's exclusive franchise arrangements in major cities. During this time, the AP's bylaws prevented non-member newspapers "in the same geographic region from obtaining an AP membership simply by demanding a vote on the competitor's application."[15]
 Cooper saw the problem with these arrangements and worked to get some of them waived.  With the advance of new technologies, Cooper and other news agencies also witnessed the increased ease with which others were able to pirate news.[16]
	The subject of piracy was not new. The penny-papers often stole news from each other in the late 1800s, but "in that era the tendency was to look upon piracy as an oblique compliment. Some editors even boasted in print their rivals found it necessary to steal their news in order to keep pace."[17]
 Historian Barbara Cloud wrote that news was traditionally thought to be part of the public domain, and so newspapers were not mentioned in the copyright laws and were assumed to have little protection.[18]
 But after 
time, publishers began to view piracy as an attack and an effort to unfairly benefit from their labor and expense. The AP was particularly vulnerable. Cloud's research indicated that one-half of the news distributed by other news agencies was taken from AP.[19]
 
As a result, a committee of AP members was formed to lobby for legislation, led by Henry Watterson of the Louisville Courier-Journal. Four bills were introduced in Congress to protect news content from theft, and one was designed to protect news for twenty-four hours after publication.[20]
 Congress considered that bill in 1884, but it did not pass.[21]
 The debate, however, may have encouraged federal legislators to include at least some protection for newspapers in the Copyright Act of 1909, which granted copyright registration to "periodicals, including newspapers."[22]
	The practice of news theft only intensified with the advent of World War I. Complicating matters was an order by the British government that barred the Hearst-owned INS from reporting any news in Great Britain or from using its cable lines. The government cited INS for "continued garbling of messages and breach of faith," a response to INS stories which contained news not passed by British censors.[23] France, Canada, Portugal and Japan also barred INS from reporting. Nonetheless, INS somehow continued to supply news from these countries. AP was soon to learn how.
	Cooper learned of a former INS employee in Cleveland who claimed that an AP member, the Cleveland News, was selling AP war news to INS. Cooper went to Cleveland to investigate and returned to New York with statements and affadavits. He reportedly told general manager Stone: "Here's the basis for your legal test of the property in news."[24]
 Not long after, the lawsuit against INS was filed.
	William Randolph Hearst, owner of INS, had guessed that Stone was looking for such a case. Kent Cooper's autobiography recounted a meeting with Hearst after the U.S. Supreme Court decided the case. In addition to owning INS, Hearst was for many years AP's largest member, with the most member papers in the cooperative, contributing millions of dollars in weekly assessments. Cooper wrote that Hearst felt unappreciated by the AP and its board. Instead, there "was deep antipathy toward him among some AP board members whose newspapers were competitive with his."[25]
 Hearst insisted that if the board had simply asked INS to stop using AP news, it would have done so, avoiding the lawsuit:
But Mr. Stone had obsessed himself with the conception that he must establish legally the principle that there is a property right in news. He wanted to use the courts to legislate by means of a decision that would construe news as property. Then, if one of my nonmember papers or my news service used Associated Press news, the offender could be sent to prison for theft of Associated Press property. Sometimes I have thought that they would like to put me there personally![26]

Indeed, the rivalry with Hearst would never be resolved. Almost twenty years after the Supreme Court's decision in AP v. INS, Hearst would raise another feud with AP, objecting to the launch of Wirephoto, AP's transmission of photos by wire to its largest member newspapers. A showdown would ensue on the floor of an AP annual meeting in 1935, and Hearst would again lose that debate.[27]
Thus, AP v. INS would come to reflect more than a decision to punish news thieves. It was the culmination of years of planning by AP to protect its labor and growing investments and the result of a fierce rivalry with Hearst.

The Case, the Arguments and the Law
	After uncovering the Cleveland News' sale of news to INS, Cooper also learned of other questionable INS practices. In its original claim, AP charged INS with:
1. Paying an employee at the Cleveland News to furnish AP news to INS as quickly as it came in over the wires.

2. Obtaining news from the New York American, another AP member, by taking it off the Morkrum receiving machine, over which AP news was distributed.

3. Procuring early editions of some of AP's member papers and from them, and from member newspaper bulletin boards, transferring the news into its contributions to its own customers.[28]
	
	The AP asked the District Court for an injunction broad enough to restrain INS from continuing these practices. INS denied paying for AP news at the Cleveland News or obtaining news from the New York American, but the District Court's review of the facts and testimony led it to rule for AP on these first two charges and to grant the injunction.[29] The court also thought the third charge was deserving of the injunction, but referred the legal question to the Second Circuit Court of Appeals.[30] That court decided the injunction should apply to the third charge as well. INS appealed to the U.S. Supreme Court.[31]
	In its brief to the Supreme Court regarding the third charge, INS admitted to taking news from AP member bulletin boards, but argued that the publication of the newspapers allowed INS to use those contents, and at that point, AP had no right to the news.[32]  A critical element distinguishing AP v. INS from similar cases today is that the AP news at issue was not copyrighted under the 1909 Copyright Act. Indeed, wire services at the time claimed that it was impossible to register their thousands of dispatches.[33] Thus, INS didn't bother arguing against a property right in news. Indeed it embraced the concept, instead arguing that under common law copyright AP lost all protection at the moment of publication:
When it thus reaches the light of day, it becomes the common possession of all to whom it is accessible. The purchaser of a newspaper containing it has the undoubted right to communicate the intelligence which it embodies to anybody, either by handing over the newspaper to be read or by oral statement of its contents, or by telephoning or telegraphing them. He has the absolute right to read the despatches (sic) found in the newspaper to whomsoever he chooses, whether it be to the worshippers in a church or to an audience in a public hall, or to the attendants at a public meeting, however numerous they may be. _ Private property in the news dies with its publication, as inevitably as does that of a trade secret by proclaiming it to the public ear .[34]


In its brief, INS also forcefully argued against connecting the case with any of the principles of unfair competition. At the time, unfair competition cases primarily involved breaches in trade secrets or contracts, and defendants were often prosecuted if they took property and tried to pass it off as their own. INS argued that nothing in AP's contracts with its members or in its bylaws forbade members to share news with others at the point 



of publication, nor did INS try to pass AP news off as its own.[35]
 Even assuming that a 
claim of unfair competition had merit, INS said AP did not demonstrate that it had 
suffered any injury, an important requirement to proving such a case, nor did it show that 
the case had precedent:
Assuming, but not conceding, that the respondent, which alleges that it is not organized for profit, has sustained damage, where is the injuria to be found? What principle of law has been violated? What property right has been infringed, when the petitioner has only taken that which it was the right of anybody and everybody to take who had access to the newspaper or to the bulletin board by which the news which the respondent calls its own, was spread broadcast? Where is the precedent for such a cause of action? . . . While it is true that the want of a precedent is not necessarily a sufficient reason for turning a plaintiff out of court, yet the fact that no precedent can be found to sustain an action in any given case, is cogent evidence that a principle does not exist upon which the right may be based.[36]

The AP, in turn, argued that there was precedent for establishing a property right in news after publication.[37] It argued news was a commodity, and its value lay in being first:
The commercial value of news, as a service, is this quality of "firstness." And the trespass that we complain of in this suit is that the petitioner is taking away from us the commercial value of this quality - that by taking the news from our bulletins and from our first editions, and offering it to the public as its own,  it is taking away from us the sole quality upon which the value of our service depends. Our contention is that the machinery set up by us to gather, to sift, to transmit, and to distribute news - the venture, the skill, the labor, the expenditure that, all together, make the service - is a service that draws to it the right of property; and that this right is trespassed upon and destroyed or depreciated by the petitioner seizing as its own the thing served - its quality of firstness - and thereby destroying the only value such service possesses.[38]

Furthermore, the AP argued that its property in news did not expire with publication but rather continued "so long as the news has property value."[39] The AP maintained that if the courts said that such a right was lost at publication, the ruling would condemn AP's business because no business would then have the incentive to produce a product that could be stolen with impunity.[40] AP also argued that such a right should last until the full commercial value was realized, although no time length was offered.[41] Indeed, arguing on behalf of its members, AP pointed out that a member publishing on the West Coast did not abandon his right to news because some other publisher used it on the East Coast three hours earlier. 
From a modern viewpoint, the most surprising argument advanced by the AP was that its case rested not on statutory or common law copyright, but solely on unfair competition principles. Its brief expressed a notion of copyright that would be widely rejected by news organizations today:
News has no resemblance of any kind to literary property except the accidents that, like trade-marks, it is expressed in words, and in print and on paper. There is no imaginative or intellectual quality in its production, except the imagination and intellect which go into the organization for its collection and distribution. Indeed its character as news disappears when invention or imagination is introduced into its substance, and it then becomes what is known as "fake."[42]

Thus, AP news was presented solely as a commodity in trade, which INS had stolen. Although both briefs conceded that the facts of news should be freely available in the public domain, any discussion of copyright's purpose as a tool to grant limited monopolies to creators and to protect the free flow of ideas and information, was absent. The nature of copyright law at the time was a significant reason for this absence, and the belief that wire service news could not be copyrighted also contributed to this perception. Indeed, it made arguing for a property right in news a priority that both organizations could support. Their disagreement was only in the duration of such a right.

The Ruling
	The Supreme Court undoubtedly struggled with the copyright law's inability to address the unique facts of this case. It therefore chose not to entertain a discussion of copyright and instead based its ruling on the principles of unfair competition in business, expanding its principles to include a new tort of "misappropriation:"
We are dealing here not with restriction upon publication but with the very facilities and processes of publication. The peculiar value of news is in the spreading of it while it is fresh; and it is evident that a valuable property interest in the news, as news, cannot be maintained by keeping it secret. Besides, except for matters improperly disclosed, or published in breach of trust or confidence, or in violation of law, none of which is involved in this branch of the case, the news of current events may be regarded as common property. What we are concerned with is the business of making it known to the world, in which both parties to the present suit are engaged. The business consists in maintaining a prompt, sure, steady, and reliable service designed to place the daily events of the world at the breakfast table of millions at a price that, while of trifling moment to each reader, is sufficient in the aggregate to afford compensation for the cost of gathering and distributing it, with the added profit so necessary as an incentive to effective action in the commercial world.[43]

	In a 5-3 vote,[44] the Court ruled that between the public and news organizations there was no property right in news, but as between rival newsgathering organizations, a "quasi-property" right existed. In his opinion, Justice Pitney admitted the case had no clear precedent. The Court appeared most influenced by the argument that the incentive to produce news is lost when rival organizations take news after publication, permitting organizations like INS to "reap where it has not sown":
Stripped of all disguises, the process amounts to an unauthorized interference with the normal operation of complainant's legitimate business precisely at the point where the profit is to be reaped, in order to divert a material portion of the profit from those who have earned it to those who have not; with special advantage to defendant in the competition because of the fact that it is not burdened with any part of the expense of gathering the news. The transaction speaks for itself, and a court of equity ought not to hesitate long in characterizing it as unfair competition in business.[45]

Although the Court granted a limited property in news vis-…-vis a competitor, it did not attempt to define the length of time such a right would last, saying "only to the extent necessary to prevent that competitor from reaping the fruits" of the organization's labor.[46]
Calling AP one of the "great news-collecting agencies," Justice Holmes concurred in the opinion, but was not so convinced of a property right in news. His opinion reflected the modern view of protection for the facts of news: "When an uncopyrighted combination of words is published there is no general right to forbid other people in repeating them," he wrote. "In other words, there is no property in the combination or in the thoughts or facts that the words express."[47]  Instead, Justice Holmes suggested "stating the truth" - that the effort in news collection should be acknowledged by those who use it after publication. In this case, INS needed merely to credit AP on its own wire. The majority criticized this rationale, saying that a simple credit would still put AP members at a distinct disadvantage. There would be little incentive to pay and subscribe to AP if one could simply take its news with credit.
In his dissent, Justice Brandeis rejected the notion of a property right in news, disputed that INS had obtained AP's news in an unfair manner, maintained that the Court was ignoring established principles of common law copyright and questioned how the courts would be able to interpret what reasonable length of time the quasi-property right should endure.[48] He argued that  although "a product of the mind has cost its producer money and labor, and has a value for which others are willing to pay," it is "not sufficient to ensure to it this legal attribute of property. The general rule of law is, that the noblest of human productions - knowledge, truths ascertained, conceptions, and ideas - become after voluntary communication to others, as free as the air to common use."[49]
He suggested that the ruling left the door open to misinterpretation and recommended that protections for news be solved by the legislature, not the courts. Furthermore, he worried that the case would unduly reinforce AP's prominence. He expressed concern that left without the use of AP's news, INS and others had no other means to obtain international news, having been shut out by Europe and others in its newsgathering pursuits. "The facts of this case admonish us of the danger involved in recognizing such a property right in news, without imposing upon news-gatherers corresponding obligations," he wrote.[50]
Thus, both sides of the Court expressed concern over the ability of the wires to gather news and information and sustain their business. The majority granted a limited property right in news, concerned that not doing so would destroy incentives to produce and gather news. Justice Brandeis, in his dissent, came closest to recognizing some of the more modern day concepts of copyright. He expressed concern that granting a property right in news would "work serious injury to the general public, unless the boundaries of the right are definitely established and wisely guarded."[51]
 His words, in light of some more recent decisions citing AP v. INS, are indeed haunting.[52]

Correspondingly, there is some indication that practitioners and scholars knew the ruling would be open to debate in future cases. Editor & Publisher reported the decision was "destined in time to affect all newspapers, as well as news-gathering organizations," and that  "newspapers large and small will henceforth invoke the protection of the Supreme Court's decision against rivals" who steal their news.[53] It wrote that the biggest mystery for publishers was exactly how long the property right would last and whether the state legislatures would soon incorporate the new ruling in tort law so that punitive damages would be awarded.[54]
An examination of eight law review articles at the time of the decision reveal support for the outcome, but some concern over the lack of clarity in the court's definition of the quasi-property right. The Illinois Law Review was the only publication to criticize the ruling. It said there was little in the way of a concrete rule for courts to follow: "To award an injunction in such a case is logically to adopt the broad legal rule that no one shall compete with another by a substantial appropriation of his ideas. The consequence of such a rule need hardly be stated."[55]

The response from INS was simple, and perhaps, in the minds of some AP opponents, also prophetic. The decision would "impose upon the country the most intolerable monopoly the world has ever known," said INS counsel Samuel Untermyer. "There is nothing to be gained at this time by controversy over what the Supreme Court decision means."[56]

Conclusion
The debate over the hot news doctrine has its roots in attempts by both AP and publishers to persuade Congress to adopt legislation protecting news content in the late nineteenth century. Since then, the debate has evolved as new technologies such as the telegraph, teletypesetter and now the Internet, change our concept of what news is "first" and how long that "firstness" endures. In AP v. INS, the Court established a quasi-property right in news, permitting news organizations to claim ownership in the news they gather for as long as the news remains valuable in commerce and retains its "firstness." But the Court made the decision without regard to technology's effects on its 
ruling, and today, the hot news doctrine is back in the news, once again challenging 
practitioners and scholars to interpret its meaning.
During a period of intense growth and competition in news gathering, AP v. INS was a calculated move by the Associated Press to protect its growing investments in news gathering. The case put the issue of property in news before the courts, after the AP and other publishers failed to get federal legislators to pass significant protections for news content. As this paper indicated, it also marked the first of many disputes with William Randolph Hearst, INS founder and owner, who as a competitor was also an important AP member. 
The case and its application must also be judged in view of the practice of copyrighting news at the time. Although the 1909 Copyright Act made provisions for news organizations to register their copyright, most wire services insisted it was impossible to copyright the thousands of dispatches they produced.[57] So without the protection of statutory copyright, the emphasis in the debate was on common law copyright and whether the effort and investment in news collection was worthy of protection after publication. Thus, the AP v. INS decision and court briefs reflect a view of news as a commodity, a tangible in trade, with minimal regard to the purpose of news in the marketplace of ideas. The case lacks the modern framework for protection of the news.[58] 
Finally, it can be argued that the Supreme Court made a social policy decision in ruling for AP, one based on little precedent.  But the ruling was probably well-advised.  A decision in favor of INS would have threatened the very heart of the nation's news gathering system at a time when global news was critical to the nation's welfare.

	
	





[1]  Jack Shafer, No Exit (visited Feb. 29, 2000) <http://Slate.msn.com/code/PressBox>. VNS also threatened action against the Drudge Report  and Inside.com, which used VNS data during the 2000 presidential election. See Anick Jesdanun, Web Sites Leak Voting Results, Associated Press,  Nov. 7, 2000.
[2]  Id.
[3]  Restatement (Third) of Unfair Competition (1993)
[4]  248 U.S. 215 (1918).
[5]  See W.H.L., Notes, 67 U. Pa. L. Rev. 191 (1919); Notes, 32 Harv. L. Rev. 566 (1918-19); Benjamin Pepper, Notes and Comment 4 Cornell L. Rev. 223 (1918-19); Notes, 18 Colum. L. Rev. 257 (1918); W.W.C., Comments 28 Yale L.J. 387(1918-19); Editorials, IV Va. L. Reg. 847 (1918-19); A.K., Comment on Recent Cases 13 Ill. L. Rev. 708 (1918); Recent Cases, 2 Minn. L. Rev. 305 (1917-18).
[6]  See Gary Myers, The Restatement's Rejection of the Misappropriation Tort: A Victory for the Public Domain, 47 S.C.L. Rev. 673 (Summer 1996); and Edmund J. Sease, Misappropriation is Seventy-Five Years Old, Should we Bury It or Revive It? 70 N. Dak. L. Rev. 781 (1994).
[7]  Charles R. McManis, Unfair Trade Practices (1988). 
[8]  See Anselm Kamperman Sanders, Unfair Competition Law: The Protection of Intellectual and Industrial Creativity (1997); Jason Boyarski, The Heist of Feist: Protection for  Collections of Information and the Possible Federalization of "Hot News" 21 Cardozo L. Rev. 871 (1999); David Djavaherian, Hot News and No Cold Facts: NBA v. Motorola and the Protection of Database Contents 5 Richmond J. L. and Tech. 8 (1998).
[9]  See Boyarski, supra note 8.
[10]  See Djavaherian, supra note 8. 

[11]  Roy Martin, assistant general manager of the AP, War Year Taxed AP To its Fullest, Editor & Publisher, Jan. 18, 1919, at 18.
[12]  Kent Cooper, Kent Cooper and The Associated Press 80 (1959).
[13]  Martin, supra note 11.
[14]  Cooper, supra note 12.
[15]  This practice was eventually found to be monopolistic, and the U.S. Supreme Court forced AP to end its anticompetitive practices. See Margaret A. Blanchard, The Associated Press Antitrust suit; a philosophical clash over ownership of First Amendment rights, 61 Business History Review 43 (1987). See also Associated Press v. U.S., 326 U.S. 1 (1945).
[16]  Cooper, supra note 14.
[17]  Oliver Gramling, AP - The Story of News 284 (1940).
[18]  Barbara Cloud, News: Public Service or Profitable Property? 13.2 American Journalism 145, Spring 1996 at 141-156.
[19]  Id. at 144.
[20]  H.R. 62, 48th Cong. (1884); H.R. 4160, 48th Cong. (1884); H.R. 5850, 48th Cong. (1884); and H.R. 1728, 48th Cong. (1884).
[21]  H.R. 1728, 48th Congress, provided:
"That any daily or weekly newspaper, or any association of daily or weekly newspapers, published in the United States or any of the Territories thereof, shall have the sole right to print, issue, and sell, for the term of eight hours, dating from the hour of going to press, the contents of said daily or weekly newspaper, or the collected news of said newspaper association, exceeding one hundred words.
Sec. 2. That for any infringement of the copyright granted by the first section of this act the party injured may sue in any court of competent jurisdiction and recover in any proper action the damages sustained by him from the person making such infringement, together with the costs of suit."
See also Cloud, supra note 18.
[22]  17 U.S.C.  5(b) (1909).
[23]  Gramling, supra note 17 at 285.
[24]  Id. 
[25]  Cooper, supra note 12 at 195.
[26]  Id. at 197.
[27]  "(AP)" Fortune, February 1937, 89-93, 148-162.

[28]  Separate Brief for Complainant at 2, INS v. AP 248 U.S. 215 (1918).
[29]  (Dist. Ct.) 240 Fed. 983 (1917).
[30]  (C.C.A.) 245 Fed. 244 (1917).
[31]  248 U.S. 215 (1918).
[32]  At the time, it was "a well settled principle of common law that, in the absence of a copyright derived from a legislative enactment, the publication of such a work amounts to a dedication of it to the public, and confers a universal right of reproduction and use whether for purposes of gain or otherwise." See Petitioner's Brief at 23, INS v. AP 248 U.S. 215 (1918).
[33]  Brief for Complainant at 34.
[34]  Petitioner's Brief at 18, 20.
[35]  Id. at 38.
[36]  Id. at 40.
[37]  AP primarily relied upon Board of Trade v Christie Grain & Stock Co., 198 U.S. 236 and National Tel. News Co. v. Western Union Tel. Co., 119 Fed. Rep. 294.
[38]  Separate Brief for Complainant at 8.
[39]  Brief for Complainant at 20. 
[40]  Id. at 21.
[41]  Id. at  23.
[42]  AP brief, p. 35.

[43]  248 US 215, 235 (1918).
[44]  Justice Clarke took no part in consideration or decision of the case because of his interest and ownership in newspapers.
[45]  248 U.S. 215, 240 (1918).
[46]  Id. at 241.
[47]  Id. at 246.

[48]  Brandeis argued that the leading unfair competition cases relied on a breach of contract or trust to award relief, and that none was evident in the case. He also argued that under the principles of copyright, all rights in the news ceased upon publication.
[49]  248 U.S. 215, 250 (1918).
[50]  Id. at 263.
[51]  Id. at 262-263.
[52]  Indeed, more recently the hot news doctrine as defined by state law in New York has been narrowed. See NBA v. Motorola, 105 F.3d 841 (1997).
[53]  Predict Statutory Protection for News as Property, Editor & Publisher, Jan. 4, 1919 at 24.
[54]  Id.
[55]  See note 7, and A.K., Comment on Recent Cases, 13 Ill. L. Rev. 716 (1918).
[56]  Predict Statutory Protection for News as Property, supra note 53.
[57]  It is important to remember that at the time, copyright registration was necessary to claim the statute's protections. That is no longer the case.
[58]  Today's framework maintains that the facts of news remain in the public domain, but the expression of news remains protected by copyright. "The most fundamental axiom of copyright law is that no author may copyright his ideas or the facts he narrates." See Feist v. Rural Telephone, Inc. 499 U.S. 340, 345 (1991).