Last week Dow Jones & Company filed a lawsuit in the United States District Court for the Southern District of New York alleging that Briefing.com is misappropriating headlines and articles content. According to the complaint filed, Dow Jones Newswires is a family of electronically-delivered proprietary news services that provide paid subscribers with a constantly-updating feed of breaking news and financial and business information. The complaint goes on to explain that Briefing.com, without permission from Dow Jones and without compensating it, systematically copies verbatim or nearly verbatim substantial portions of Dow Jones’ copyrighted articles from the Newswire service and distributes them in competition with Dow Jones to Briefing.com subscribers and to other vendors. The complaint alleges that in some cases the republication and distribution occurs within a minute or two after the article is published by Dow Jones. In just one two-week period, Briefing.com copied a substantial portion of at least 100 articles and republished more than 70 headlines within three minutes of the initial publication on Dow Jones Newswires. Dow Jones alleges that this conduct violates Dow Jones’ copyrights and also amounts to “hot news” misappropriation.
In addition to the alleged copyright violation and “hot new” misappropriation, Briefing.com is alleged to violate the Digital Millennium Copyright Act (DMCA) by striping the Dow Jones copyright notice from the articles that it redistributes. Furthermore, the complaint alleges that Briefing.com redistributes many stand-alone Dow Jones Newswire headlines within minutes of publication, thereby unfairly competing with Dow Jones.
This is a case that bears watching, and one that I personally have a keen interest in following. As I continue to move forward with the generation of original content that is the result of interviews, research and an awful lot of behind the scenes work I am becoming a big advocate for the resurgence of “hot news” protections. Recently I published something that was the culmination of many weeks of effort only to have over 50% of what was published copied and pasted to another industry website within minutes of publication on IPWatchdog.com. So this case being brought by Dow Jones could do an awful lot of good for not only themselves, but for those of us who are citizen journalists with serious blogs or online magazines who are attempting to create meaningful original content.
Certainly the copying and pasting of original content suggests copyright infringement, but many times in the news area the copyright protection that is offered is thin. In the case of an interview there is at least some copyright protection available for the questions, the order of the questions, the interview flow, selection of which parts of the interview to publish and the editing that takes place. When the story is a factual one, however, the line is blurred though because facts cannot be copyrighted, and this will sometimes lead those who do not do the hard work of obtaining the facts to simply refer to the facts within a story, make minor edits and republish them. In this scenario the party who engaged in the work of uncovering the facts is scooped within minutes and a free-rider has obtained the benefit of the hard work done by the individual or entity in uncovering the facts and writing the original news story.
In reading the complaint the examples provided suggest that what Briefing.com was doing was referring to the news report from Dow Jones and then paragraph by paragraph rewriting the report, keeping both facts and the overall flow of the story. This suggests that there is quite clearly copying ongoing and only a thinly veiled attempt to alter the expression.
Still, it will be the hot news aspects of the case that could have the biggest impact on what many feel is anti-competitive and unjustified misappropriation. As Dow Jones explains, it expends significant effort and expense to gather, report, write, edit and disseminate the news that appears in the Newswire service. Through the systematic process of copying and redistributing breaking news headlines and articles Briefing.com customers obtain the content without Briefing.com putting forth any journalistic efforts of its own and without incurring the costs incurred by Dow Jones to report the news. Thus, Briefing.com is free-riding on Dow Jones investments in gathering and reporting the news in a timely fashion.
If “hot news” protections mean anything any more them would seem to have to apply to this situation and the situation where others engage in the effort of creating original content. If individuals or organizations are allowed to take original content immediately then the party going to the effort of creating the original content will not derive the benefit, but will incur the costs. That will make it increasingly impossible to engage in such activities when those who are free-riders water-down the benefit of the creation of original content by taking it for themselves. That is why “hot news” protections were originally conjured up by the courts. In situations where there may not be copyright protections the generator of original content should still at least have a window of opportunity to exploit the fruits of their labors exclusively. Whatever that time should be I will suggest that it ought to be longer than minutes.
“Dow Jones invests considerable resources to produce timely and trusted news and business information,” said Mark H. Jackson, general counsel for Dow Jones. “Briefing.com has been brazenly taking a free ride on the reputation of our publications and on the investment Dow Jones makes in quality, real-time journalism.”
“Dow Jones respects and defends the rights of other news organizations to report on news events in a timely manner. Here, however, Briefing.com did not use its own resources to uncover, verify and describe news events. It waited for Dow Jones to do all the work, and then simply copied the content,” Mr. Jackson said. “In order to continue to offer the quality news and business information customers expect and count on, Dow Jones will take action to stop the misappropriation of its content.”