Elliot Fuchs: The Law and Business Behind Fake News

Many, if not most, first year law students taking a course in property law are taught the now famous case of International News Service v. Associated Press. In that case, the court had to determine if the Associated Press had a legal property right to “hot news” that INS was taking off their early bulletins (this pre-dates the era of internet news) and selling it in other time zones as news they had procured themselves. The court determined that the AP had at least a quasi-property right to the news it obtained and had legal recourse against a company trying to take the news away from them. (The basis of this ruling was the policy consideration that the news industry required it, because AP would not continue its business if competitors can siphon off its work without paying for it. The dissent forcefully disagreed, stating, there can be no property right to a mere combination of words.)

Thinking about news procured as a property interest is a fascinating way to think about the media industry and can perhaps be enlightening as to its current state.

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This case is taught today solely for the theoretical derivations it provides. Indeed, its holding has just about zero practical implication in the era of modern news reporting, because long gone are the days where AP puts its news on a bulletin to be redistributed. Due to technological developments, a news story is often “reported” by way of a 200 character tweet. At that point, using the tweet as a basis for its source, each news outlet can run with the story. Stealing AP’s hot news is impracticable when AP posts it on the internet to millions of followers for everyone to see who got the story first.




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