Are there property rights in US time-sensitive information?


John B. Pegram and Kristen McCallion
June 2010
E-commerce Law & Policy
Reprinted with permission (2010)

The rise of online news platforms and of 'breaking news' has renewed interest in the 'hot news' doctrine in the US. John B. Pegram and Kristen McCallion, of Fish & Richardson P.C., examine the recent revival of this legal doctrine and analyse its implications.

Current cases are considering the long-standing questions of whether 'hot news' information concerning breaking news and current events can be protected under New York common law misappropriation principles and to what extent such principles are - or are not - preempted by Section 301 of the Copyright Act1. On 18 March 2010, a federal district court in the Southern District of New York enjoined the immediate republication by electronic distribution of investment recommendations, on misappropriation grounds, applying the 'hot news' doctrine2. Subsequent actions taken by the defendant in this case have resulted in a stay of the injunction and an expedited appeal with a hearing that some say may occur as soon as July3. In this article, we review the origins and the recent revival of the hot news doctrine.

1 17 U.S.C. 301, preempting rights equivalent to exclusive rights within the general scope of copyright defined in the Copyright Act.
2 Barclays Capital Inc. v, 2010 WL 1005160 (S.D.N.Y., 18 March 2010).
3 v Barclays Capital Inc., No. 10 Civ. 1372 (Dkt. No. 79) (2d Cir. 2010).