The Doctrine Of Hot News and why it troubles me

I have written often about the doctrine of hot news, and how one day it could be used to stifle the sharing and posting of news as it happens, giving large media companies an artificial and short-term monopoly of the reporting said news.

Yes I did say that the tone of the article was a bit tongue and cheek and that I certainly hoped that I was not writing a precognition piece. The fact however remains that this practice is indeed happening, and that if people don’t stand up and voice their displeasure with media companies hijacking the news in this manner then this practice may very well become  the status quo.So having written briefly of the consequences of this disturbing trend, I thought I’d explore further the concepts of this practice, it origins and the various applications that have occurred thus far.Hot news is a long recognised but seldom used common law doctrine that assigns a temporary property right to the reporting of a hot news item, similar to copyright but obviously with a much shorter expiration period.

It dates back to a 1919 US Supreme Court decision, and has the following five factor test.

1/ the news is gathered at a cost,

2/ the news is time sensitive

3/ the other party use of the news, takes advantage of the effort, but provides no compensation

4/ the other parties’ use of said news is in direct competition with the reporter, composer and producer of the news

5/the use of the news would lessen the incentive for the reporter, composer and producer of the news to continue to produce the news or substantially reduce the quality of the said news.

These are rather broad in their scope and could easily be corrupted to stifle competition.

Now obviously rules, laws and regulations are conceived and enacted to correct a perceived injustice that existed at the time. In the case of Hot News this was created to protect news gathers in a time when there was a very high costs in reporting the news due to geographical and technological limitations. News agencies would spend huge sums to embed journalists is the field , set up bureau’s in remote locations and generally source and report the news themselves. However less than scrupulous news organisations would simply buy the competing newspaper edit and rewrite said stories as if they had researched the facts themselves and of course publish.

This seemed unfair and it was, the world was a vastly different place than it is today and that republishing others costly work could seriously undermine a news organisations ability to fund the sourcing and creation of said news, this outcome would not have been in the best interests of the community and thus laws were enacted to prevent this. However as technology advanced and the world really became a lot smaller, news became more instant and the advent of television meant these disputes faded away. These days basically the news is all the same, competition exists in how organisations differentiate their copy through pictures, commentary and editorials but the basic premise is the same.

The Hot News Doctrine is not as sometime assumed an extension of copyright.

You can not copyright facts or idea’s, copyright does not protect ideas, concepts, systems, or methods of doing something. Your expression of the ideas however can be copyrighted.

So what has happened to bring this hoary topic to the fore? Well quite simply you are using it right now, I am of course referring to the internet and advent of the news aggregator Wikipedia.org has the following definition

In general internet terms, a news aggregation website is a website where headlines are collected, usually manually, by the website owner.

In computing, a feed aggregator, also known as a feed reader, news reader, rss reader or simply aggregator, is client software or a Web application which aggregates syndicated web content such as news headlines, blogs, podcasts, and vlogs in a single location for easy viewing.

Newspapers regularly object to these practices, arguing that they dilute the value of their own work, and that because these aggregators present the most valuable text of any given story in the headlines that the majority of readers just consume that text and never bother clicking through and linking to the original story, Also of concern and in my opinion their biggest beef is that these aggregators sell advertising in direct competition to the news sites and are thus profiting on somebody else’s work.

Arstechica wrote a brilliant article on this topic that you can read here, as well Techdirt have covered this issue on multiples occasions both here and here. I would recommend that if you are interested in this topic that you read these articles.

So what is happening now that so alarms me well this from THE NATIONAL LAW JOURNAL

“Southern District of New York Judge Kevin Castel rejected a motion to dismiss a claim brought by the AP against All Headline News Corp. (AHN) for misappropriating AP breaking news and presenting it as the work of its own reporters.

The rulings came in The Associated Press v. All Headline News Corp., 08 Civ. 323, a suit where the AP alleged that defendants W. Jeffrey Brown and Danielle George instructed "poorly paid individuals" at All Headline News to locate breaking news stories from other sources and edit them for use under the All Headline News banner.

While the seminal case of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), would "render the federal common law origins of International News Service non-binding on the federal courts," Castel said, the doctrine persisted in several states, including New York.”

Click to read the full text here

And this article from THE AM LAW DAILY

“That's the tort three banks represented by Weil, Gotshal & Manges used to win an injunction against the breaking Wall Street news site Theflyonthewall.com, according to The Am Law Litigation Daily. The banks claimed Fly's practice of publishing pieces of research reports almost instantly undercut their work by making key nuggets meant for exclusive client use available to a wider audience immediately

The banks--Merrill Lynch, Barclays, and Morgan Stanley--claimed that Fly was "free-riding" on their work, stealing their intellectual property, and costing them money, the stories say. They asked Judge Denise Cote of federal court in Manhattan to bar Fly from publishing their reports for four hours or until noon at the earliest, Bloomberg says.

Cote ruled for the banks but shortened the prohibition. “

Click to read the full text here

So as you can see the principles of HOT NEWS are again being used against some web content, and although both these cases seem extreme and the outcome is probably fair, I am concerned that this practice if not contained could as I discussed yesterday lead to the news again being owned by large media organisations to the exclusion of everyone bar the powerful players. Precedents have a way of gaining momentum and I trust this troubling concept is not going to disappear any time soon

like this article have something to add leave me a comment, I would love to hear your opinions on this hot topic.

hot off the satellite, why technology erodes choice

The world is becoming a much more complex place in which to inhabit, or should I say to exist. I am not talking about the effects and beneficial gains from the technology revolution, we have experienced revolutions before, the industrial revolution rocked the very foundations of our society and yet despite the enormous upheaval and the predictions of that again the end is nigh we emerged more prosperous, engaged and with a wide-eyed anticipation of what the future held for us. The technological revolution has like its predecessor the industrial revolution produced many fundamental changes to our society. Technology has opened the world up, it has made travelling easier, faster and more efficient, and it has also allowed us the luxury of almost instant communication to anyone anywhere in the world. The gadgets from the mobile phone, computers and GPS have made a our life’s experiences vastly different from those of even a persons of a mere 40 years ago.

I however think that one achievement stands above all others as the single most important achievement of all that both the industrial and technological revolution has allowed. I am referring too, the ability to break free from the constraints of our very planet and the gravity that binds us here and to explore the solar system and beyond. However it is in space or more specifically the small zone of space that extends out only a mere hundred or so kilometres from earth, the area that is inhabited by the myriad of satellites in orbit around our planet that has had the most profound effect on mankind. The ability to launch ourselves and our payloads from the planet and defy gravity to remain in obit above the earth has allowed us to lay one of the most pivotal foundations of our society. It has allowed the ubiquitous communication to almost any destination in the world unlike any other human advancement before.

All revolutions have costs be they real implied or intangible, of course they most certainly have benefits or else I suspect mankind would not have progressed down that path. Time is a dimension, and like the three others that we live with, height, length and depth, we are constrained by the laws the governor it. We can only see the 4^th dimension as a point in time the present, and although we are aware of the progression of time, and write of our experiences in our history, and although we can also look to the future with optimism our path is only forward. The effects of all revolutions past are accumulative, and as we live through this the current one it will apply many more costs to our already burden ridden lives.

But what are these costs?  What is it that I refer too? I really should refer to them as what they really are the “unintended consequences”; these are the costs that revolutions have burdened us with and one consequence in particular concerns me the most.I think that we are losing choice, no not the ability to choose what we will consume, a simple trip to the supermarket, a brief moment on the internet or the simple act of turning the television should more that adequately illustrate that we are definitely not wanting for choice, it abounds everywhere. No I refer to the choice to either obey a rule, a regulation or law; I don’t want to live in a world where it is impossible to break the law. 

Don’t get me wrong I did not say I want to break the law, no not at all. It’s just every new law, combined with the use of new technology in the fight against crime corrodes at our ultimate freedom, free will. This may sound counter intuitive but as we corrupt technology and apply it to maintaining law and order we are creating an all-encompassing gaol for mankind to inhabit. We will no longer be able to break the law. 

This is a complex concept, a subject that I have thought long and hard about, I suppose the embryonic seeds of the this idea/belief first surfaced many years ago when as a young man I read 1984 by George Orwell, and further readings of science fiction cemented the fear. I know that these are not books of prediction, but as an observer of the mankind and the advancement of technology I see its effects on mankind and society, I see many troubling parallels

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I will endeavour to provide a couple of explicit examples of the chilling effect that this is happening on society. I don’t intend this to be a doom piece no matter how it sounds. No this is a warning, a warning that we as a society needs to address the constant ratcheting up of rules and regulations or as I alluded too gaols will become the confinement area of the purpose-built correctional facility that binds, us a place we will  know as society.

The first areas of law enforcement that seemed to embrace the technological advances all appear to be in the areas of traffic management. This was really a no brainer and such an easy sell to the public. Motor Vehicle incidents are one of mankind greatest preventable killer of human beans. The cost on society is huge and the suffering and hurt thrust upon the victims of these incidents can be psychologically, financially and physically crippling. Is it any wonder why governments acted and yes I agree technology can most definitely help in reducing the carnage, but what I see goes far beyond this. I believe and I know will be shouted down by governments as ignoring the facts, but revenue drives this and OK or as a consequence we raise revenue. The proliferation of speed and red like cameras is so vast and ever-expanding that I can see a day where is will be impossible to break any road laws without being caught, fined and if it serves the government's agenda humiliated as a law-breaker, mind you not so serious as to require incarceration after all you can’t contribute if your locked up.

This may seem far-fetched but think about it, those satellites that I talked of they run the GPS system the earth loves so much, and yes no doubt one day every car will have one, it could even be mandated. These devices are able to record you speed and could in time remotely report breaches’ to law enforcement authorities. This will happen you may dismiss the “unintended consequences” as the law at work I just don’t and see it as a willing away of another freedom of ours.

Governments all try to control us for a variety of reasons and many different social models exist around the world, however there is universal condemnation of undemocratic governments and the control they wield upon their people. Prior to the invention of printing press, non personal communication was afforded to only the  powerful and the wealthy, governments of course utilized this, they were epitome of wealth and power and this monopoly power consumed them. The advent of the book opened up society to the power of expression and the sharing of ideas. It empowered the people and the governments hit back with a new and improved sword to cut away at the freedom that wide spread freedom and expression of ideas allowed they introduced censorship. Jump ahead today and the situation has not much changed. The politically corrupt regimes still exert their absolute control over the people, they now utilise computer technology to beat the technology that could allow their people the freedom that we the peoples of the world's so-called free nations are all accorded. Yes the world still condemns them for their lack of freedoms but it would appear many nations must secretly admire the absolute control these regimes exercise else why else would they look to replicate and copy the censorship that permeates these regimes.

There has been a debate just recently with the Australian Federal Government poised to introduce a mandatory filter to block refused classification material from all Australian residents; this is done with the aim to protect Australians from the so-called nasties that are lurking just beyond our borders. However I see this as just another claw back of power, a stifling of our freedoms and that if not challenged will enviably lead to scope creep and again those dreaded “unintended consequences”. There are multitude of everyday items that are being corrupted in the name of law and order. We are have become a monitored society, every thing you do, every where you go can be recorded and monitored. Every detail of your life lives on a database some where, the government or really just about anyone if truly connected can obtain information on every facet of your life, in most cases you have volunteered this information but in may cases it is surreptitiously recorded. These days it would appear the only real area the only sanctuary that is truly private is your home. But alas and ignore the pun but the majority of us have added a new window that allows us to peer out at the world via the internet unfortunately this too comes with an “unintended consequences” as not only is it a window on the world but it works two ways, it is also a portal in, and although we think only we have the keys to the lock, other very resourceful people have them too.

Its not a stretch to one day governments mandating this be a two-way portal that allows them access, after all I just heard The US President was just presented with the master keys to the internet. Many that argue for greater government control often provide this statement as a rebuttal to any questioning of these or similar articles “you have nothing to fear if you have nothing to hide”. Well I will counter with that I have plenty to fear if I live in a world where defiance to the rule of law, every misstep, every illegal act is detected, fined and deterred, if I am powerless to break the rules I really have no freedom at all. I believe the ability to do the right thing, the ethical thing is a choice and choice is really the only freedom, remove that and I might as well be in a goal. 

So in conclusion although I think satellites have allowed the innovation and fulfilment of so many gadgets that offer so many amazing benefits to mankind and that I stand by my assertion that space exploration and the lessons learned have allowed for many of these great achievements, it's just I see the “unintended consequences” this time as having a far great impact in the erosion of our rights than any other advancement in technology or knowledge has ever been before. What do you think? Have I lost the plot? The one thing that I must say that I am thankful for, I like the window on to the world that satellites, the internet and technology allows me and the ability to freely post my thoughts, feel free to share yours leave a comment, I would love to hear from you.