International News Service v. Associated Press

Brief Fact Summary.

Associated Press (Plaintiff) sued International News Service (Defendant), a competing distributor of news to newspapers throughout the United States, for pirating Associated Press’s (Plaintiff) news.

Synopsis of Rule of Law.

One who has gathered news or general information for the purpose of publication has an interest that is entitled to protection from interference.

Facts.

Associated Press (Plaintiff) and the International News Service (INS) (Defendant) are competitors in the gathering and distribution of news and its publication for profit in newspapers throughout the United States.  Associated Press (Plaintiff) brought suit to restrain the pirating of its news by INS (Defendant).  Allegedly, Defendant bribed employees of newspapers in order to furnish Associated Press (Plaintiff) news to itself before publication, for transmission by telegraph and telephone to INS’s (Defendant) clients for publication by them; by inducing Associated Press members to violate its bylaws and allow Defendant to get news before publications and by copying news from bulletin boards and from early editions of Associated Press’s (Plaintiff) newspapers and by selling this, either bodily or after rewriting it, to INS (Defendant) customers.  The district court granted a preliminary injunction as to the first and second practices.  The circuit court of appeals sustained the injunction order.  Writ of certiorari was granted.

Issue.

Does one who has gathered news or general information at pain and expense for the purpose of ensuing publication through the press have an interest that is entitled to protection from interference?

Held.

(Pitney, J.)  Yes.  One who has gathered news or general information at pain and expense for the purpose of ensuing publication through the press has an interest that is entitled to protection from interference.  The question of unfair competition in business as it relates to the gathering and production of news must turn upon the rights of the parties as between themselves.  In regards to the news, therefore, as the material out of which both parties are attempting to make profits at the same time and in the same field, such news must be regarded as quasi-property between the two parties.  News has an exchange value to one who can misappropriate it.  In this case, acquiring and transmitting the news required elaborate organization and a great expense of money, skill, and effort.  Because INS (Defendant) sold Associated Press’s (Plaintiff) goods as its own, it is guilty of unfair competition by virtue of misappropriation.  The preliminary injunction should not be modified.  Affirmed.

Dissent.

(Brandeis, J.)  The Court should decline to determine limitations that should be set upon any property right in news or of the circumstances under which news gathered by a private agency should be considered affected with a public interest.

Concurrence.

(Holmes, J.)  Within the limits recognized by the majority, INS (Defendant) should be enjoined from publishing news obtained from Associated Press (Plaintiff) for hours after publication by Associated Press (Plaintiff) unless it gives express credit to Associated Press (Plaintiff).

Discussion.

The basis of this opinion is the fact that news is not copyrightable because the writer did not create the news element.  Therefore, basing its opinion on the basis of unfair competition, the majority proceeded on a misappropriation theory while Justice Holmes approached it as a misrepresentation, i.e., a reverse “palming off.