Briefing.com has settled a lawsuit brought against it by Dow Jones (NSDQ: NWS) & Company, paying an undisclosed sum of money for publishing Dow Jones stories without its consent. But perhaps more intriguing than Dow Jones’ victory in this open-and-shut copyright case is Briefing.com’s admission that it also broke “hot news” laws. The legal doctrine of hot news stems from a 1918 Supreme Court case, and can prevent news organizations from re-reporting time-sensitive news that was gathered by others. But it is a still-untested concept in the digital era that promises to be contentious.
Dow Jones sued Briefing.com in April, attaching to its complaint examples of 107 news articles written by the Wall Street Journal and Dow Jones Newswires that were copied verbatim or nearly verbatim by Briefing.com-including stories with typographical errors. With such clear evidence of cutting-and-pasting, Dow Jones could have won its suit with a copyright claim alone. But it’s telling that the wire service insisted on suing over-and forced Briefing.com to admit it had violated-the hot news claim as well. It suggests that the news service may be trying to put itself in a strong position to file more hot news lawsuits in the future.
Briefing.com, which charges for some of its content, describes itself as a service that provides “independent, live market analysis of the U.S. and international equity markets.”
Dow Jones’ general counsel Mark Jackson said that the settlement vindicates the use of the hot news doctrine, saying in a statement: “For those who question whether hot news misappropriation has a place in the modern era, this case demonstrates that it is a vital and effective tool for protecting time-sensitive content.”
That’s likely overstating the case, because while Briefing.com has admitted to liability, no news-gathering organization has fully tested the power of the almost century-old “hot news” doctrine in court in the internet era. It’s questionable whether the law is enforceable at all in modern times. The doctrine is based on a set of facts that arose around telegraph-era technology. Also, the 1918 case, which pit the AP against the Hearst-owned International News Service, involved a variety of bad actions by INS-including bribing AP employees-that are not present in these cases.
The judgment filed with the court includes a permanent injunction barring Briefing.com from any further copying, and allows Dow Jones complimentary access to Briefing.com’s web site in order to monitor the site’s compliance.
Last year, the Associated Press brought a lawsuit with both copyright and hot news claims against All Headline News and won a settlement to similar to Dow Jones.
And earlier this year, three investment banks obtained a hot news injunction against TheFlyOnTheWall.com, which was re-publishing those banks’ stock-buying recommendations. TheFlyOnTheWall.com was ordered to delay re-publication of the information by two hours, but the injunction was put on hold while the website appealed to the U.S. Court of Appeals for the 2nd Circuit. That court heard oral arguments in the case in August, but has not yet ruled.