International News Service v. Associated Press
248 U.S. 215 (1918)

  • International News Service (INS) and the Associated Press (AP) were news organizations that wrote stories and sold them to newspapers. AP sued INS for getting pre-publication copies of AP’s stories, and then repackaging and selling the stories to INS’s client newspapers.
    • AP claimed that INS:
      • Bribed newspaper employees to send AP stories to the INS.
      • Convinced newspapers to share their AP stories with INS prior to publication.
      • Copied AP stories out of early edition newspapers on the East Coast and sent them to INS customers on the West Coast.
    • AP actually had correspondents over in Europe covering WWI. INS did not. INS was writing their stories about WWI by reading what AP was reporting.
  • The Trial Court found for AP and issued and injunction to INS telling them to stop the first two practices, but that they could still copy AP stories out of published newspapers. AP appealed.
    • The Trial Court felt that the conduct was unfair but they were not sure if it were actually illegal.
  • The Appellate Court affirmed. AP appealed.
  • The US Supreme Court affirmed.
    • AP argued that news stories are similar to literary properties and should be protected as such.
    • INS argued that news does not fall with in the operation of the Copyright Act. In addition, INS argued that once AP makes the information available to the public, they don’t control it anymore and can’t dictate what people do with it.
      • INS argued that the news is essentially abandoned property, once the paper is published.
    • The US Supreme Court recognized the dual character of news articles. They distinguished between the substance of the information and its form.
      • AP didn’t invent the news.
    • The US Supreme Court found that there was a quasi-property right in the news as it is “stock in trade to be gathered at the cost of enterprise, organization, skill, labor and money, and to be distributed and sold to those who will pay money for it”.
      • Basically, The Court said that while there is no copyright on the ‘facts, there is an economic value to ‘news’, and as such a company can have limited proprietary interest in it against a competitor (but not the public) who takes advantage of the information.
    • The US Supreme Court upheld the common law rule that there is no copyright in facts and developed the common law doctrine of misappropriation through the tort of unfair competition.
  • If this case had gone the other way, AP would still not have lost all value of their product. People would still pay AP for their newsfeeds. In this manner, the idea of intellectual property is different from chattel such as a farmer’s tomatoes. If someone takes your tomatoes, you have no value left. Here, INS’s efforts only resulted in a partial decrease in the value of AP’s property.
    • On the other hand, if AP wasn’t getting paid a lot, they might chose not to pay to put reporters in Europe, and then nobody would be collecting the news.
  • Btw, all those Civil Procedure fans out there might be interested to notice that this case was decided under Federal common law. This was pre Erie Doctrine.
  • One interesting historical fact was that most of the big stories of the day related to developments in WWI. AP’s editorial staff was pro-intervention, and wanted the US to get involved. INS was anti-war and wanted the US to stay out. The British government knew this, and froze INS reporters out of their briefings. If INS couldn’t get their news from AP, they wouldn’t be able to get it at all.
    • That could have had a propaganda effect on the American public.