The New News (3) the growth of unfair competition law.23
These three changes affected the way the Supreme Court decided cases during the early part of the twentieth century.24 In 1918, the U.S. Supreme Court decided the case that introduced the “hot news” doctrine to the country: International News Service, Inc. v. Associated Press.25 The AP, at the time, was a cooperative organization with members representative of around 950 newspapers that were published in all parts of the United States.26 International News Service (“INS”) was a similar company that gathered and sold its news to 400 newspapers throughout the United States.27 The two news agencies were in direct competition with each other to provide their readers with breaking news,28 especially the important news of World War I.29 During that time, the AP had reporters stationed all over Europe who transmitted breaking news stories back to the U.S. via telegraph.30 INS could not transmit stories because it had been banned from using French and English mail and cable lines.31 In order to continue to satisfy its customers’ need for breaking news, INS took bulletins and early editions of AP stories and sold the stories to its member newspapers.32 INS also bribed AP employees to take AP’s news and give it to INS before the news was published.33 The AP brought the suit alleging that INS received early editions and bulletins of AP news and copied news stories directly from those sources to INS members.34 The United States Supreme Court stated that, although the hard news wasn’t protectable by the copyright law of the time, it could be protectable from misappropriation by a rival business.35 The Court then held that there was a quasi property right in news between the two competing news organizations, and it affirmed the injunction that the district court had entered, which gave the AP an exclusive right to its news for the time that it had commercial value as news.36 decisions “reassured early twentieth century businesses that antitrust laws could be enforced without destroying successful businesses.” E kstr a nd, supra note 15, at 35. 23. E kstr a nd, supra note 15, at 35. Unfair competition law was born out of trademark law and most early cases “involved ‘passing off’ or ‘palming off,’ in which one competitor tried to ‘pass off’ the product of another seller by means of similar labeling, packaging, or advertising. Id. at 37. 24. Id. 25. Int’l News Serv. v. Associated Press, 248 U.S. 215, 215 (1918). 26. Id. at 229. 27. Id. at 230. 28. Id. 29. Lewis R. Clayton, District Court Finds AP has ‘Quasi-Property’ Right to News, N.Y.L.J 3, (col. 1) (2009). 30. INS, 248 U.S. at 230. 31. Id. INS was banned from using those lines because it was accused of violating wartime censorship rules. Id. 32. Id. 33. Id. 34. Id. at 231. 35. Id. at 237-238. The Court then delivered its oft-quoted view that “defendant, by its very act, admits that it is taking material that has been acquired by complainant as a result of organization and the expenditure of labor, skill, and money, and which is salable by complainant for money, and that defendant in appropriating it and selling it as its own is endeavoring to reap where it has not sown, and by disposing of it to newspapers that are competitors of complainant’s members is appropriating to itself to harvest of those who have not sown.” Id. at 239-240. 36. Id. at 245. In their dissents, Justice Holmes and Justice Brandeis argued that there was no property in the news and that the only way for a newspaper to get protection against the theft of news was for the
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