The new edition of the Federalist Society’s Engage magazine has a very good article by David Applegate and Ryan Schermerhorn about the “hot news exception” that asks the legal question: Hot nor not? Excerpts:
Copyright law, like contract law, is deceptively complex. Just as the familiar elements of offer, acceptance, and consideration can give rise to endless disputes not easily resolved, the seemingly simple notion that an author has a time-limited monopoly on rights to a particular work of authorship gives rise to many questions. Given constantly-changing technology for fixing works of original expression in tangible media, ever-evolving means of copying and piracy, and repeated revisions to U.S. copyright law, both the courts and creators have had a difficult time understanding core concepts and keeping up with how the law is applied. Nowhere is this difficulty more apparent than in the Second Circuitâ€™s attempts to keep the law of copyright straight in the area of â€œhot news.â€ . . .
In our view, [recent opinions] have engaged in unnecessary analysis while reaching the right result. Simply put, as the U.S. Supreme Court clarified in Feist [Publâ€™ns Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991)], U.S. copyright law does not protect facts or ideas, no matter how carefully or cleverly arranged, but only the particular expression of those ideas if sufficiently original. Even giving credence to the dubious value of Section 301â€™s â€œlegislative history,â€ it is difficult to envision a claim that (1) â€œseeks to vindicate â€˜legal or equitable rights that are equivalentâ€™ to one of the bundle of exclusive rights already protectedâ€ under Section106 regarding (2) a â€œwork . . . of the type of works protectedâ€ under Sections 102 and 103 and is not by those very terms preempted.
Practically speaking, keeping a “hot news” cause of action in a case is no small thing. But as the authors here point out, it should be.