International News Service v. Associated Press

No. 221. Argued May 2 and 3, 1918. Decided December 23, 1918. Certiorari to the United States Circuit Court of Appeals for the Second Circuit. Decree affirmed. Opinion of the Court by Justice Pitney; Justice Holmes filed a separate opinion, in which Justice McKenna concurred; Justice Brandeis dissenting; Justice Clarke took no part in the consideration or decision of the case.

Editorial note. The Associated Press gathered news at great expense through a co-operative organisation of member newspapers and distributed it to those members. International News Service obtained that news from bulletin boards and from early editions of eastern member papers and transmitted it, sometimes rewritten, to its own customers in western cities, where the time difference allowed it to publish simultaneously with or ahead of the Associated Press members. The news was not copyrighted. The lower courts enjoined the practice.

Editorial note. The issue was whether uncopyrighted news, once published, may be appropriated by a competitor for its own commercial distribution. The Court held that it may not. Although news as a statement of fact is not the subject of property against the public, as between competing news agencies the product of the effort and expenditure of gathering it is a quasi-property interest, and to take that product while it retains commercial value and sell it in competition with the gatherer is unfair competition in business. The rule that follows is a narrow misappropriation principle: a competitor may not reap where it has not sown for the limited period in which the material retains its time-sensitive commercial value.

Editorial note. Justice Pitney distinguished the interest asserted against the general public from the interest asserted against a competitor. Publication ends any claim to exclusivity against readers, but it does not license a rival to appropriate the fruits of the plaintiff's labour and expense and to divert the plaintiff's profit to itself. Justice Brandeis dissented, warning that the knowledge and ideas at issue become, upon voluntary communication, the common possession of all, and that the creation of a new exclusive right in information — with its necessary limits as to duration, subject, and remedy — is a legislative rather than a judicial task.

Editorial note. The decision is the classical American authority for treating an intangible, non-excludable resource as property for a limited purpose, and it is the point of departure for the treatise's treatment of digital and intangible property. It shows both the attraction and the danger of reasoning from labour and investment to ownership, and Justice Brandeis's dissent supplies the institutional objection that later courts and Congress have largely accepted.

Editorial note. Limited. Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), removed the general federal common law on which the decision rested, leaving the misappropriation doctrine to state law. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), rejected any sweat-of-the-brow theory of protection in copyright, and modern courts confine INS to hot-news misappropriation narrowly defined and subject to preemption analysis under the Copyright Act.

Editorial note. Read with the treatise chapter on digital and intangible property; compare Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984), on intangibles recognised as property by state law.