Note – The Case for Uniform Hot News Preemption
Volume 64, Issue 5, 1521-1549
Hot news misappropriation is a ninety-year-old tort that provides a quasi-property right in factual information to fact-gathering organizations. When available, the right prevents free riders from copying factual information while it remains hot. The question is whether section 301 of the Copyright Act preempts hot news misappropriation claims in all circumstances. Although courts have had little trouble finding that most misappropriation claims are preempted, the issue is complicated in the hot news context by legislative history suggesting that hot news claims survive preemption. That suggestion conflicts with the actual language of the Copyright Act’s preemption provision, which seems to require the universal preemption of hot news claims.
In the 1990s, hot news cases were rare enough that one might have reasonably concluded that the tort had died out. Nonetheless, courts left open the suggestion that a hypothetical hot news claim might survive preemption. There the issue might have remained, but revolutionary technological expansion has made copying, the actus reus of hot news misappropriation, exponentially more harmful to traditional fact gathering organizations. In recent years, the hot news tort rose from its dormancy through aggressive litigation by institutions like the Associated Press and Barclays Capital Inc. Because these lawsuits are anti-competitive and threaten the public domain, it is time to put the specter of hot news to rest. Fortunately, faithful application of section 301 of the Copyright Act compels that exact result. This Note presents the case for uniform hot news preemption.