The public interest in timely news has never been greater. News originators — traditional news organizations and news services that make costly investments in reporters, editors, and bureaus — have responded by going where more and more readers are: on the internet. Today, most original news content can be found, for free, on publishers’ websites or licensed sites. However, originators face challenges: They must compete for internet viewers and advertising dollars with an array of third-party news services, often called “news aggregators,” that do no original reporting but instead copy and distribute news content from originator sites without permission.
To protect their interest in the content they gather at a cost, originators are now asserting their rights in court, often through suits alleging “hot-news” misappropriation. This doctrine, nearly a century old, was for many years considered something of a historical oddity, but it has gained new relevance as timely news information has become valuable to a variety of digital platforms. However, a recent decision of the U.S. District Court for the Southern District of New York suggests that, in a world where many aggregators are copying the news content of one originator, one lawsuit may not be sufficient — equitable principles may require originators to restrain misappropriation of their content by other parties as well. This article will review this suggested “duty to police” in Barclays Capital Inc. v. Theflyonthewall.com, No. 06 Civ. 4908, 2010 WL 1005160 (S.D.N.Y. March 18, 2010), and its potential negative consequences for news originators.
