Electronic Frontier Foundation copyright attorney Corynne McSherry has news about Barclays v FlyOnTheWall.com, a case that asked the Second Circuit Court of Appeals to rule on whether the “Hot News” doctrine could be applied in the digital era. “Hot News” is an obscure corner of law that lets newsagencies treat publicly available facts as property and prevent others from reporting on them for a set time.
In Fly, the court heard argument that FlyOnTheWall.com was endangering the business-models of several financial recommendation services that provided stock-tips by reporting on those tips as soon as they were published. The court’s decision is instructive:
The adoption of a new technology that injures or destroys present business models is commonplace. Whether fair or not, that cannot, without more, be prevented by application of the misappropriation tort… The Firms are making news; Fly, despite the Firms’ understandable desire to protect their business model, is breaking it.
The court found in Fly’s favor, and ruled that the “Hot News” doctrine is even narrower than previously thought, and can only be applied in true “free riding” cases where one news-entity is copying a competitor verbatim — Merrill Lynch, Morgan Stanley, and Lehman Brothers and the other plaintiffs aren’t news agencies, they’re news. Their stock tips are newsworthy. When Fly reported on them and undermined their profitability, it was tough noogies (an incredibly underused legal concept, IME).
EFF was amicus on the case, and filed comments with Citizen Media Law Project and Public Citizen asking the court to find as it did. Other amici who took the defendant’s side included Google and Twitter.
The “Hot News” Doctrine After Fly On the Wall: Surviving, But On Life Support