Misappropriation and the AP

In my last post, about Blockbuster, I cheekily suggested that I shouldn’t link to the story, because it was on MSNBC, but was an AP story.  I said that because apparently the AP is “mad as hell” and isn’t “going to take it anymore.”  (I hope the irony isn’t lost on anyone.)

What am I talking about?  Well, Ars Technica talks about how the AP appears not to be content with simply going after Shepard Fairey, and with attempting to charge bloggers for even miniscule quotes ($12.50 seems fair for five words, right?).  Nope, now it’s brought misappropriation off the shelves, blew the dust off International News Services v. Associated Press, 248 U.S. 215 (1918), and is holding it up as exactly the sort of thing the AP needs to do to be totally awesome.

I was going to do a large exigesis on misappropriation, and then I discovered that it would take an awful lot of time to do that.  So I’ll make it quick by summarizing that the doctrine grew out of unfair competition concerns from the early 20th century, it has very little to do with traditional copyright, and everything to do with “hot news.”  Indeed, the Second Circuit has stated that there are five elements which are essential for a INS-style claim:

  1. the plaintiff generates or collects information at some cost or expense;
  2. the value of the information is highly time-sensitive;
  3. the defendant’s use of the information constitutes free-riding on the plaintiff’s costly efforts to generate or collect it;
  4. the defendant’s use of the information is in direct competition with a product or service offered by the plaintiff; and
  5. the ability of other parties to free-ride on the efforts of the plaintiff would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.

National Basketball Association v. Motorola, Inc., 105 F.3d 841, 852 (2d Cir. 1997).

But, no matter, what we’re seeing with the AP, and the recent moves against iTunes, Amazon, and Walmart, and ISPs with bandwidth caps, and television and movie companies with streaming video is that there is a conflict with consumers’ insatiable thirst for content and with providers’ ability to provide it.