Consumer Law

Dow Jones settles its hot news claims against Briefing.com -- and gets only words

By Paul Levy

by Paul Alan Levy

The blogosphere has been reverbrating today with news of the settlement of Dow Jones? lawsuit against Briefing.com, which features an admission by the defendant  of liability for copyright infringement and DMCA violations, as well as ?common law misappropriation of certain ?hot news? including the news headlines listed in Exhibit D of the Complaint.?   See paragraph 5 of the consent judgment.  Dow Jones has been trumpeting the last clause of paragraph 5, claiming that ?the settlement vindicates the use of the hot news doctrine, [and] saying in a statement: ?For those who question whether hot news misappropriation has a place in the modern era, this case demonstrates that it is a vital and effective tool for protecting time-sensitive content.??

Actually, I read the settlement document in exactly the opposite way ? it shows that the hot news doctrine has no content other than as a buzzwordy club with which to threaten lawsuits and run up the defendants' litigation costs.  Apart from the ?admission,? the settlement consists of the payment of a lump sum in an undisclosed amount that covers both the infringement and the misappropriation, as well as a permanent injunction.  Nothing tells us how much the damages for misappropriation were.  But if hot news were a key part of the enforcement strategy, you would expect the injunction to cover future ?hot news? misappropriation.  In fact, the only thing that has been enjoined (paragraph 6 of the consent judgment) is ?further infringement of Dow Jones? copyright in articles published by Dow Jones.? 

One of the most troubling aspects of the hot news doctrine is its vagueness, and the uncertainty about what it covers except as revealed, after the fact, by intensive and certainly very expensive litigation.  In this case as in the flyonthewall case, and indeed as in all the other hot news cases, copyright claims were brought along with hot news claims.  In the flyonthewall case, analysis of the papers filed in connection with the attorney fee application suggests that the two sides spent more than two million dollars on the hot news part of the litigation, and in the district court alone.

But what social value does the doctrine provide, apart from the prevention of the sort of copying that the copyright laws forbid? 

Full post as published by CL&P Blog on November 17, 2010 (boomark / email).