On Misappropriation...

I found Lyrissa Lidsky's recent Prawfs post on the misappropriation doctrine quite thoughtful, especially the potential connection to blogger lifeblood - commenting on news collected by someone else. I wanted to share a few thoughts on the topic, primarily because I find myself in what appears to be a small minority - academics who think misappropriation is a good thing.

Now, when I say "misappropriation," I don't mean stupid stuff like the NBA trying to protect basketball scores. I also don't mean sheep in wolf's clothing applications where a plaintiff tries to claim misappropriation because it failed to protect its trade secrets (I defended plenty of those cases in practice - yuck!).

I'm talking about "hot news" and other time sensitive factual information that is costly to gather. This is information that is undeniably public and copyable - indeed, that's the whole point. If it were secret, you might be able to claim trade secrecy. If it were creative, you might be able to protect it with copyright. What to do about undeniably public and factual information is a difficult question - one that I can only begin to answer after the jump.

The typical answer these days falls into the "information wants to be free" category - if it is factual and public, then society is best served by it being spread. I'm just not so sure. I think there's an important externality that gets missed - the decreased incentive to gather information in the first place. To me, the question is not whether information wants to be free, but whether it should be.

Many have criticized newspapers, a dying medium, for failure to get into the modern cyber world. Why can't they just figure out how to publish all their news in an easily accessible digital format - for free no less - and figure out how to make money? The answer is simple - if information is available for free, no one will pay for it. And it is costly to gather news - if newspapers don't get paid for the work of uncovering news stories, they won't do it.

The result is closure of newspapers because their news gathering no longer gives them a competitive edge. This leads to a consolidation of news stories, which leads to echo chambers with thin content and even thinner analysis. I hardly need to point to examples. The latest is the April Fools Joke about the White House Blogger that fooled no less than the New York Times (the Times!). Why? No time, no money, no incentive to do fact checking. Information is out there - let's just copy it from somewhere else, and assume that someone else will gather the news. (I'm happy to say the Washington Post took the time to fact check and discovered the hoax).

So, I don't like where the news world is going. I like free and instant news as much as the next person. But I wouldn't mind a little bit of for-cost news gathering rather than press-release repetition now and again. Real news gathering is still out there. I've been quoted in a couple stories in the San Jose Mercury News recently - 20 minutes of interviews for a one line quote. From the questions he asked me alone, it's clear that the reporter took his time to research and understand the story before printing it. I think that's a luxury we will see less of in coming years. It's no surprise that AP is starting to crack down on copyright and hot news arguments - it is one of the few real news gathering organizations out there - with reporters everywhere - and it wants to stay that way. It simply won't be able to afford to do so if only one provider pays for content while everyone else just copies the news or snips the facts someone else paid to gather.

So, where does this leave bloggers? I don't think blogging will come to an end. Blogging can be plenty vapid. How many blogs do we need to report the news that Michael Jackson died? Are they telling us something we don't already know? Not that this is the type of news gathering I'm talking about, but the real value of a blog is the commentary - and that can be done with a link back to the original news source, not a replacement of it. Anyone who reads a blog as a replacement for their daily news is either grossly under-informed or reading a blog that perhaps should be subject to a hot news delay. (Indeed, even some bloggers want their own content delayed).

Even though I believe in the misappropriation doctrine, line drawing is difficult. At some point, news must be shared. Theflyonthewall.com case discussed by Prof. Lidsky tries to draw that line. I don't know if it gets it right. Finding the line is where the hard work lies.