International News Service v. Associated Press
248 U.S. 215 (1918)
International News Service
(INS) and the Associated Press (AP) were news organizations that wrote
stories and sold them to newspapers. AP sued INS for getting
pre-publication copies of AP's stories, and then repackaging and selling
the stories to INS's client newspapers.
AP claimed that INS:
Bribed newspaper employees
to send AP stories to the INS.
Convinced newspapers to
share their AP stories with INS prior to publication.
Copied AP stories out of
early edition newspapers on the East Coast and sent them to INS
customers on the West Coast.
AP actually had
correspondents over in Europe covering WWI. INS did not. INS was writing
their stories about WWI by reading what AP was reporting.
The Trial Court found for AP
and issued and injunction to INS telling them to stop the first two
practices, but that they could still copy AP stories out of published
newspapers. AP appealed.
The Trial Court felt that
the conduct was unfair but they were not sure if it were actually
The Appellate Court affirmed.
The US Supreme Court affirmed.
AP argued that news stories
are similar to literary properties and should be protected as such.
INS argued that news does
not fall with in the operation of the Copyright Act. In addition, INS argued that once AP makes
the information available to the public, they don't control it anymore
and can't dictate what people do with it.
INS argued that the news is
essentially abandoned property,
once the paper is published.
The US Supreme Court
recognized the dual character of news articles. They distinguished
between the substance of the information and its form.
AP didn't invent the news.
The US Supreme Court found
that there was a quasi-property right
in the news as it is "stock in trade to be gathered at the cost of
enterprise, organization, skill, labor and money, and to be distributed
and sold to those who will pay money for it".
Basically, The Court said
that while there is no copyright on the 'facts, there is an economic
value to 'news', and as such a company can have limited proprietary
interest in it against a competitor (but not the public) who takes
advantage of the information.
The US Supreme Court upheld
the common law rule that there is no copyright in facts and developed the
common law doctrine of misappropriation through the tort of unfair
If this case had gone the
other way, AP would still not have lost all value of their product. People
would still pay AP for their newsfeeds. In this manner, the idea of
intellectual property is different from chattel such as a farmer's tomatoes. If someone takes
your tomatoes, you have no value left. Here, INS's efforts only resulted
in a partial decrease in the value of AP's property.
On the other hand, if AP
wasn't getting paid a lot, they might chose not to pay to put reporters
in Europe, and then nobody would be collecting the news.
Btw, all those Civil Procedure
fans out there might be interested to notice that this case was decided
under Federal common law. This was pre Erie Doctrine.
One interesting historical
fact was that most of the big stories of the day related to developments
in WWI. AP's editorial staff was pro-intervention, and wanted the US to
get involved. INS was anti-war and wanted the US to stay out. The
British government knew this, and froze INS reporters out of their
briefings. If INS couldn't get their news from AP, they wouldn't be able
to get it at all.
That could have had a
propaganda effect on the American public.