copyright, facts, news, preemption, misappropriation


Newspapers are in trouble. Circulation and advertising are down as readers shift from print to online media. Although changing reader preferences and the loss of lucrative classified advertising to online sources are major worries, the news media seems preoccupied with news aggregators and bloggers who distribute news content on the internet without permission. Newspapers are not the only ones worried about the unauthorized distribution of "their" news on the internet. Financial services companies are unhappy about the distribution of their "hot" stock recommendations and other content providers seek to control online news ranging from movie schedules to business ratings. Traditional copyright doctrine offers varying degrees of protection for the literary format of the news — broad in scope for the text of news stories, narrower and less certain for smaller expressions like news headlines and leads. Content providers want more. They seek to control the online distribution not just of their literary forms, but of the very facts that are the news itself. The battle is being waged on two fronts. One involves an attempt to extend the traditional scope of copyright beyond the protection of expression into the previously forbidden realm of facts. The second front involves efforts by content providers to enlist the century-old common law tort of misappropriation. The reemergence of the misappropriation tort from the shadow of federal copyright law is somewhat improbable, resting as it does on a single paragraph of legislative history, extracted from an ABA Committee Report, that was directed at a portion of the copyright revision bill that was never actually enacted. Nevertheless, its application to news on the internet has been cheered by many commentators. This Article examines the recent attempts by content providers to gain control over facts through federal copyright law and the common law tort of misappropriation.