William Hughes - Paper 1

In today’s technological era, ideas have become an increasingly complicated and valuable concept.

• Ideas have become a more valuable concept? This sentence is supposed to mean something, but what it actually says is nonsense. That's what you're supposed to fix when you edit your draft.

As in the past, they are valued for their indispensable role as the foundation for innovative processes, products, and theories; however, in the 21st century they are regarded as assets distinct from elements their application is able to create.

• This is a 21st century change? I thought that's what the old idea of 20th century copyright was. It is, for example how you read and misread the copyright doctrine of 1918, below.

As such, ideas have assumed the identity of a new form of currency, essential for the acquisition of wealth and authority. The entertainment industry has recognized this dichotomy, making the development of ideas the central component for establishing the reputation essential for garnering wealth. As class discussion has highlighted, ideas become the currency, which the industry is willing to trade in order to build and secure the reputation crucial for success. Naturally, the development of a reputation is dependent upon a consumer base vested with the power to decide which ideas to devote their attention and resources. Faced with the reality of this “market for eyeballs,” it is therefore no wonder that the industry seeks to acquire the attention of the public while at the same time restricting the permissible uses. One area in which the tension between distribution of ideas and controlling their use is copyright law, particularly with respect to its application in “hot news” stories. Since the groundbreaking case International News Service (INS) v Associated Press (AP) in 1918, the courts have struggled to balance the need to protect certain works and ideas with a desire to prevent the establishment of a system which gives creators property rights in facts dedicated to the public domain. The seminal case of the modern era interpreting INS, NBA v Motorola, lays a framework within which to consider the data protection initiatives embraced by industries and subsequently observe that in the “market for eyeballs,” as it pertains to the hot news arena, the judiciary is reluctant to recognize a property right.

• A very long windup for almost no pitch at all. This graf could have been done in less than fifty words.

In the years prior to NBA, the courts have adopted a line of reasoning in favor of property rights even for facts as set forth in INS. The INS decision essentially stood for the proposition that those who amassed facts had a right to protect their investment in the gathering of news, particularly against competitors.

• This underestimates the incoherence of the decision. The facts themselves are unprotectible, the Court recognizes. Had it not done so, the case would no longer be good law, because both Feist and Eldred teach that the idea/expression distinction is a constitutional requirement for any copyright law consistent with the First Amendment. So what can be protected is only the expression of the news gathered, not its content. And if that is what can be protected, then all of Justice Pitney's misappropriation logic amount to no more than a rule against copying expressions, as to which Justice Brandeis is correct that the legislature can provide a fix, which it did seventy years later in a statute you don't mention. Because you do not describe the bearing of this distinction either in the Hearst opinion itself or in the subsequent actual development of the news business, the remainder of the essay begins to diverge from accuracy in its analysis.

Essentially, the Supreme Court supported an argument that news was a commodity, and therefore, was property in the form of a valuable business commodity pursuant to 5 key factors: 1)The AP’s significant labor and investment in the news 2) The value of its news for the short period after it was published 3)INS’ free-riding on AP’s investment in the news 4)The competition between AP and INS and 5)The harm INS would cause to AP’s business by such actions. The adoption of these criteria represented a philosophy analogous to that of software companies which would like to expand the boundaries of copyright so as to increase the powers of information ownership.

• Saying that this is a property regime assumes a conclusion not really earned. It looks and behaves more like a liability rule, does it not?

In the context of the “hot news doctrine,” and the passage of the 1976 Copyright Act defining the extent to which copyright law preempted state law intellectual property protections, courts emphasized the element of investment and free-riding (Ekstrand, 155). This doctrine of misappropriation received renewed attention in the 1990s as some businesses looked to profit from new media by using data and information that remained unprotected by copyright law, but at the same time wanted to protect themselves from the perceived increased threat of news media piracy. Emblematic of this trend, the NBA sought a right of ownership in the transmission of its scores that would preclude Motorola from broadcasting them in real-time. As class discussion has indicated, such application of copyright law certainly protects ownership rights, but may contribute to the restriction of opportunities with respect to developing new ideas and goods that adequately capture the consumer desire for increasingly superior goods. Ultimately, the court’s decision in NBA and subsequent cases which have opposed property claims in “hot news” items, demonstrates an implicit recognition of this fact from which broader technological concerns may be considered.

For the first time, in NBA, the courts articulated the elements that would enable an ownership right to apply to hot news items: 1)A plaintiff generates or gathers information at a cost; 2) The information is time-sensitive; 3) A defendant’s use of the information constitutes free-riding on the plaintiff’s efforts; 4) The defendant is in direct competition with a product or service offered by the plaintiffs; and 5) The ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or services that its existence or quality would be substantially threatened (NBA 145). Cursory examination of these conditions may indicate the sort of property ownership rights antithetical to the free-flow of ideas and information necessary for development of new technologies. However, in the fifth prong, one notes the need to balance the other considerations with an assessment of whether the “free-rider” threat is actually existent or merely illusory. Class discussion has indicated that such a concern is one presented by many software companies in their efforts to obtain property rights on their ideas and data; however, as it pertains to hot news issues, they are required to demonstrate evidence that the free-rider problem will actually “substantially threaten” their incentive to produce the product or service they are providing. Ultimately, since NBA, the courts have evolved to construe “hot news” claims in a manner which provides great levels of judicial inquiry into the impact of another’s appropriation of the material. Consequently, this places a greater burden upon claimants to demonstrate the actual harm they will incur from such use, as the 1999 case Fred Wehrenberg Circuit of Theatres v Moviefone requires that the actions make the plaintiff “virtually cease to participate” in the business (Wehrenberg 1050). Although the courts have not formally expressed a criticism of the free-rider problem as an argument for granting property rights in such cases, their stringent requirement for evidence of disadvantage appears to serve as a tacit skepticism of the claim.

• Not technically convincing, for a basic jurisprudential reason, obscured because you never give full citations to your cases. You therefore don't tell the reader that you are claiming that a Court of Appeals decision in the Second Circuit modified or overruled a Supreme Court decision that is still good law. Had you said this, people would have known you couldn't very well be right as described. One way or another, you have to deal with this.

• Isn't NBA v. Motorola just INS v. AP dressed up in the contemporary transcendental nonsense of law and economics jargon? No further restriction can be applied consistent with the First Amendment than the idea/expression distinction permits (which is why anything dressed up as a property rule is always going to be a liability rule against copying expressions without permission), so all these formulations are essentially irrelevant. This is particularly true--though you do not explain why or acknowledge the distinction--now that "hot news" isn't a sort of emergency annex of copyright. Under the 1911 Act, wire service copy wasn't copyrightable because incapable of registration, which is why Justice Pitney is put to maundering about common law copyright and publici juris. Thus the protection of hot news by a supposedly-crafted quasi-property rule substituted for the copyright balance. After 1998, with our accession to the Berne Convention in the Digital Millennium Copyrights Act, all work is born copyrighted, including the reports of basketball scores considered in the 1997 case you are treating as current, even though it is merely a local decision in a legal landscape that no longer exists.

• Which leaves me as a reader pretty uncertain. You don't seem convincing on the "change" from the nonsense of INS v. AP to the nonsense of NBA v. Motorola. You don't seem persuasive on the nature of 21st century law, partly because you don't cite any 21st century cases and ignore some relevant late-20th century legislation, and partly because you don't inquire into whether 21st century circumstances have any effect on the viability of 20th century "common sense." Now that the Wikipedia covers breaking news better than most of the proprietary press, for example, how can anyone seriously argue that proprietary privilege is a necessary "incentive" to the production of hot news? Or, for that matter, basketball games?

-- WilliamHughes - 24 Oct 2008

• Your paragraphs are too long. You make it more difficult than necessary for the reader to follow your argument. Not only would shortening the paragraphs be an aid to readability in itself, it would help you to use simpler diction and fewer words, both of which would be even more helpful in improving the writing, and allowing you to see more clearly and repair more effectively the weak places in your arguments.