47:5 The “Hot News” Doctrine: It’s Not 1918 Anymore—Why the “Hot News” Doctrines Shouldn’t Be Used to Save the Newspapers



The death knell for print journalism has tolled ominously for fifteen years. Although newspapers have been the source of daily news for most of the world since the early seventeenth century, the immediate and widespread acceptance of the Internet and online news has likely sounded the inevitable end for newspapers. This is evidenced by the radical decline in newspaper revenues, which has caused many newspapers to go out of business and others to cut their staffs significantly.

Newspaper companies contend they are losing business to news “aggregators” who do not expend resources gathering and reporting the news, and instead distill a newspaper’s newly published content and republish it on their own websites. Consumers may then read the stories on aggregators’ websites, rather than the newspaper’s website. Several commentators and the Federal Trade Commission have suggested that the “hot news” doctrine be used to prevent the further decay of the print journalism industry, and the Second Circuit Court of Appeals recently reaffirmed the survival of the hot news tort in Barclays Capital Inc. v. Theflyonthewall.com.

This Comment argues that because the hot news doctrine provides the originator of factual information with the exclusive right to disseminate that information, the doctrine is incompatible with traditional intellectual property law and the First Amendment. As consumers and advertisers turn to the Internet for interest-focused content, the doctrine will not protect newspapers from facing financial difficulty. It, therefore, does not justify the restraint it places on the dissemination of truthful information. The potential exists for drastically better journalism in the digital world because the consumer can interact, comment, and seek out the information that is of interest to him. The courts should not hinder this development by providing newspapers with rights that were never meant to be within their power.