"Hot news": The enduring myth of property in news

Columbia Law Review

Volumn 111, Issue 3, 2011, Pages 419-497

  Balganesh, Shyamkrishna ^a  

^a UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

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EID: 79955138419     PISSN: 00101958     EISSN: None     Source Type: Journal    
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References (407)

1. Philip Meyer, The Vanishing Newspaper: Saving Journalism in the Information Age 5 (2d ed. 2009) (noting decline of newspaper influence, profitability, and household penetration);
2. Frank Ahrens, The Accelerating Decline of Newspapers, Wash. Post, Oct. 27, 2009, at A15 (describing how today's newspaper circulation numbers are lowest in history);
3. Eric Alterman, Out of Print: The Death and Life of the American Newspaper, New Yorker, Mar. 31, 2008, at 48-49 (discussing how newspapers in their current printed form are unlikely to survive).
4. Newspaper Ass'n of Am., Advertising Expenditures, at http://www.naa.org/TrendsandNumbers/Advertising-Expenditures.aspx (on file with the Columbia Law Review) (last updated Mar. 2010).
5. Pew Research Ctr., Project for Excellence in Journalism, The State of the News Media 2010, Number of U.S. Daily Newspapers: Weekday and Sunday Editions, Yearly Increments, 1990-2008, at http://www.stateofthemedia.org/2010/chartland.php?msg=1&id=1312&ct=line&dir=&sort=&c1=1&c2=1&c3=1&c4=1&c5=0&c6=0&c7=0&c8=0&c9=0&c10=0&d3=0&dd3=1 (on file with the Columbia Law Review) (last visited Feb. 11, 2011).
6. Steven Petersen & Ryan Sidlik, The Associated Press Intellectual Prop. Initiative (2009), available at http://www.bivings.com/thelab/presentations/AP_Intellectual_Property_Bivings.pdf (on file with the Columbia Law Review) (discussing Associated Press initiative to "crack down on sites that it claims use its intellectual property improperly").
7. See Associated Press, Protect, Point, Pay-An Associated Press Plan for Reclaiming News Content Online, available at http://www.niemanlab.org/pdfs/ProtectPointPay.pdf (on file with the Columbia Law Review) (last visited Feb. 11, 2011) (describing licensing market at heart of this idea).
8. See Feist Publ'ns Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344-48 (1991) (observing how mere facts are excluded from copyright law, absent original expression).
9. See Owning the News: Copyrighting Facts as Well as Words, Economist, June 26, 2010, at 63 (discussing proposed heightened protections for newspapers and potential impact on ability to copyright facts).
10. U.S. 215 (1918).
11. Douglas G. Baird, The Story of INS v. AP: Property, Natural Monopoly, and the Uneasy Legacy of a Concocted Controversy, in Intellectual Property Stories 9 (Jane C. Ginsburg & Rochelle Cooper Dreyfuss eds., 2006) [hereinafter Baird, Uneasy Legacy] (discussing case background and ramifications).
12. International News, 248 U.S. at 236.
13. Id. at 239-40.
14. Id. at 258 (Brandeis, J., dissenting).
15. See Newman v. Sathyavaglswaran, 287 F.3d 786, 797 & n.13 (9th Cir. 2002) (describing quasi-property as a "term with little meaningful legal significance").
16. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) ("There is no federal general common law.").
17. See, e.g., Standard & Poor's Corp. v. Commodity Exch., Inc., 683 F.2d 704, 710-12 (2d Cir. 1982) (New York law); Bd. of Trade v. Dow Jones & Co., 439 N.E.2d 526, 537 (Ill. App. Ct. 1982) (Illinois law); Columbia Broad. Sys., Inc. v. Melody Recordings, Inc., 341 A.2d 348, 353 (N.J. Super. Ct. App. Div. 1975) (New Jersey law). Nat'l Basketball Ass'n v. Motorola, Inc., 105 F.3d 841, 852-53 (2d Cir. 1997).
18. Id.
19. Id. at 853. What is ironic in all of this is that the Second Circuit ultimately denied the plaintiff's claim. Yet, its holding and analysis have spurred a robust body of case law, especially in the Second Circuit.
20. Dean Singleton, Chairman, Associated Press, Remarks at the Associated Press Annual Meeting (Apr. 6, 2009), at http://www.ap.org/pages/about/pressreleases/pr_040609c.html (on file with the Columbia Law Review).
21. Press Release, Associated Press, Associated Press to Build News Registry to Protect Content (July 23, 2009), available at http://www.ap.org/pages/about/pressreleases/pr_072309a.html (on file with the Columbia Law Review).
22. More recently, the U.S. Department of Justice (DOJ) issued a letter supporting AP's actions, creating the registry, and noting that it was unlikely to run afoul of the antitrust laws. See Letter from Christine A. Varney, Assistant Attorney Gen., U.S. Dep't of Justice, Antitrust Div., to William J. Baer, Esq., Arnold & Porter LLP (Mar. 31, 2010), available at http://www.justice.gov/atr/ public/busreview/257318.htm (on file with the Columbia Law Review) ("[T]he Department has no present intention to challenge the AP's Registry proposal... [as it] is not likely to result in anticompetitive harm and... it may provide procompetitive benefits to participating content owners and users."). Of course, the DOJ's support says nothing of AP's position on the ownership of news.
23. See, e.g., Associated Press v. All Headline News Corp., 608 F. Supp. 2d 454, 458-61 (S.D.N.Y. 2009) ("A cause of action for misappropriation of hot news remains viable under New York law, and the Second Circuit has unambiguously held that it is not preempted by federal law.").
24. See, e.g., Barclays Capital Inc. v. Theflyonthewall.com, 700 F. Supp. 2d 310, 313 (S.D.N.Y. 2010) ("The [plaintiff financial services] firms contend that their recommendations are 'hot news' and that the regular, systematic, and timely taking and redistribution of their recommendations constitutes misappropriation...."); Complaint ¶ 7, Dow Jones & Co., Inc. v. Briefing.com, Inc., No. 1:10-cv-03321 (S.D.N.Y. Apr. 20, 2010) ("Briefing.com... unfairly competes with Dow Jones in the delivery of 'hot news' and tortiously misappropriates Dow Jones' headlines and articles from the DJN.").
25. Theflyonthewall.com, a defendant in one of the cases previously cited, had in fact commenced an action for hot news misappropriation against another small competitor, Tradethenews.com, and settled the matter before a verdict. See Barclays Capital Inc., 700 F. Supp. 2d at 327-28 (explaining allegations as including misappropriation of "Fly's valuable, time-sensitive, proprietary information by broadcasting content from Fly's newsfeed on its own website within seconds of the content being posted"). The court in Barclays used the prior case to deny the defendant's claim that there was a strong industrywide norm against owning news and information that was publicly distributed. Id. at 338 ("Fly's argument that its practices are in accordance with prevailing industry norms-that, in essence, no one 'owns' financial information once it is released-is further undermined by Fly's use of the hot-news misappropriation theory to sue one of its competitors, TTN.").
26. Fed. Trade Comm'n, Potential Policy Recommendations to Support the Reinvention of Journalism 5-17 (Discussion Draft 2010) [hereinafter FTC Discussion Draft], available at www.ftc.gov/opp/workshops/news/jun15/docs/new-staff-discussion.pdf (on file with the Columbia Law Review).
27. Id. at 9-11.
28. Id. at 10.
29. For some criticisms of the FTC's study in the newspaper media, see Jeremy W. Peters, Government Takes on Journalism's Next Chapter, N.Y. Times, June 14, 2010, at B7 (collecting criticisms of FTC paper from journalists, media watchdogs, and academics); Editorial, FTC Floats Drudge Tax: Journalism Can Reinvent Itself Without Government 'Help,' Wash. Times, June 4, 2010, at http://www.washingtontimes.com/news/2010/jun/ 4/ftc-floats-drudge-tax/ (on file with the Columbia Law Review) ("The Federal Trade Commission... is seeking ways to 'reinvent' journalism, and that's a cause for concern."). For the most substantive response to the proposals to date, see Google, Inc., Comments on Federal Trade Commission's News Media Workshop and Staff Discussion Draft on "Potential Policy Recommendations to Support the Reinvention of Journalism" 2 (2010), available at www.google.com/googleblogs/pdfs/google_ftc_news_media_comments.pdf (on file with the Columbia Law Review) ("Regulatory proposals that undermine the functioning of healthy marketplaces and stall the pace of change are not the solution.").
30. References in this Article to "misappropriation" and "the misappropriation doctrine" should be understood as referring to hot news misappropriation-i.e., the cause of action that is traced back to International News and the unique quasi-property doctrine that the Court formulated in that case. The two terms are used interchangeably throughout. It very importantly does not include the more generic idea of misappropriation, which extends beyond these situations and is often invoked in relation to trade secrets, goodwill, and other intangibles.
31. Richard A. Posner, Misappropriation: A Dirge, 40 Hous. L. Rev. 621-41 (2003) (discussing misappropriation as stand-alone doctrine that originated in International News);
32. Leo J. Raskind, The Misappropriation Doctrine as a Competitive Norm of Intellectual Property Law, 75 Minn. L. Rev. 875-876 (1991) (referring to misappropriation as doctrine that originated in International News).
33. See infra Part II.A.1 (discussing how free riding of some newspapers incentivizes free riding by most participants in market, leading to slower collection and dissemination of news).
34. See infra Part II.A.2.a-b (discussing evolution of formal and informal types of cooperation among newspapers).
35. See infra Part II.A.2.c (describing problems that arise from granting individual property right in news).
36. Mark A. Lemley, Property, Intellectual Property, and Free Riding, 83 Tex. L. Rev. 1031-46 (2005) ("Courts applying the property theory of intellectual property are seeking out and eliminating uses of a right they perceive to be free riding.").
37. See infra Part II.B (discussing interrelationship between unjust enrichment principle and misappropriation doctrine).
38. Perhaps the only scholar to recognize this connection early on was Rudolf Callmann. Rudolf Callmann, He Who Reaps Where He Has Not Sown: Unjust Enrichment in the Law of Unfair Competition, 55 Harv. L. Rev. 595-97 (1942) (noting that INS v. AP "in effect imported into the law of unfair competition the concept of unjust enrichment").
39. Yet, Callmann's analysis paid scant attention to the nuances of unjust enrichment doctrine and its structural contribution to the debate about misappropriation, focusing almost entirely on unfair competition, Callmann's principal area of interest at the time. Nearly half a century later, Wendy Gordon's work on intellectual property's "restitutionary impulse" also examined this interface in some detail.
40. Wendy J. Gordon, On Owning Information: Intellectual Property and the Restitutionary Impulse, 78 Va. L. Rev. 149-244 (1992) [hereinafter Gordon, Restitutionary Impulse] ("[T]he restitutionary cause of action is a species of unfair competition; this competition is deemed unfair because the law recognizes the restitutionary principle. This relationship between the two doctrinal categories should not be surprising. After all. International News Service. is a case of both unfair competition and unjust enrichment.").
41. For a recent discussion of unjust enrichment law in the European context, Anselm Kamperman Sanders, Unfair Competition Law: The Protection of Intellectual and Industrial Creativity 121-34 (1997) (examining unjust enrichment doctrine in Germany, France, the Netherlands, and the United Kingdom).
42. For early work trying to describe the area, Charles Bunn, The National Law of Unfair Competition, 62 Harv. L. Rev. 987-88 (1949) ("[W]e have a national law of unfair competition now. It is found in. the Federal Trade Commission Act of 1914, as amended by the Act of 1938.");
43. Rudolf Callmann, What is Unfair Competition?, 28 Geo. L.J. 585-607 (1940) [hereinafter Callmann, What is Unfair?] ("Only if we free the life of commercial competition from the role of a Cinderella. may the Law of Competition develop freely and without restraint.");
44. Zechariah Chafee, Unfair Competition, 53 Harv. L. Rev. 1289-1315 (1940) (explaining his theory of "Exploration" in which courts cautiously expand concept of unfair competition to include "a few new kinds of standardized wrongs");
45. Milton Handler, Unfair Competition, 21 Iowa L. Rev. 175-259 (1936) ("[T]he definition of unfair competition by administrative legislation is incomparably superior to definition by administrative decision.");
46. James Angell McLaughlin, Legal Control of Competitive Methods, 21 Iowa L. Rev. 274 (1936) ("Judicial development of [unfair competition] into closely related fields has been needlessly restricted by two leading cases.");
47. Ervin H. Pollack, A Projection for the Revaluation of Unfair Competition, 13 Ohio St. L.J. 187-235 (1952) ("The pattern of legislative, judicial and administrative experience has been sufficiently outlined to sketch a clear legislative picture of unfair competition but its details must be completed by administrative action.").
48. Hanoch Dagan, Unjust Enrichment: A Study of Private Law and Public Values 1-3 (1997) (noting components of unjust enrichment include "(i) a benefit (or enrichment); (ii) which has been received by the defendant at the plaintiff's expense; and (iii) the retention of which is unjust");
49. Christopher T. Wonnell, Replacing the Unitary Principle of Unjust Enrichment, 45 Emory L.J. 191-219 (1996) (discussing four distinct principles underlying liability based on unjust enrichment).
50. Richard A. Epstein, The Ubiquity of the Benefit Principle, 67 S. Cal. L. Rev. 1369-71 (1994) ("[T]he common law coach runs not on three substantive wheels, but on four.").
51. Ariel Porat, Private Production of Public Goods: Liability for Unrequested Benefits, 108 Mich. L. Rev. 189-190 (2009) (describing unjust enrichment law in terms of externalities).
52. Baird, Uneasy Legacy, supra note 9, at 11 ("Melville Stone is the person most responsible for developing the idea of a property right in news.").
53. These were the McMullen brothers, who owned the Chicago Post and the Chicago Mail. Id.;
54. Melville E. Stone, Fifty Years a Journalist 355-56 (1921) (describing practice of copying from newspapers without permission as "universal" and his desire to find legal remedy in the form of a property right).
55. ME Stone, supra note 40, at 337-38 (quoting Frederic Jennings, then General Counsel of the Associated Press).
56. Nat'l Tel. News Co. v. W. Union Tel. Co., 119 F. 294, 299-301 (7th Cir. 1902).
57. Int'l News Serv. v. Associated Press, 248 U.S. 215, 234-35 (1918).
58. Id. at 246-48 (Holmes, J., concurring).
59. Id. at 236 (majority opinion) ("Regarding the news, therefore, as but the material out of which both parties are seeking to make profits at the same time and in the same field, we hardly can fail to recognize that for this purpose, and as between them, it must be regarded as quasi property, irrespective of the rights of either as against the public.").
60. See, e.g., Nat'l Basketball Ass'n v. Motorola, Inc., 105 F.3d 841, 852-53 (2d Cir. 1997) (treating International News as establishing "hot-news" misappropriation claim).
61. Douglas C. Baird, Common Law Intellectual Property and the Legacy of International News Service v. Associated Press, 50 U. Chi. L. Rev. 411 (1983) [hereinafter Baird, Common Law] (describing development of misappropriation as form of common law intellectual property);
62. Frank H. Easterbrook, Intellectual Property Is Still Property, 13 Harv. J.L. & Pub. Pol'y 108 (1990) (linking intellectual property to traditional property);
63. Richard A. Epstein, International News Service v. Associated Press: Custom and Law as Sources of Property Rights in News, 78 Va. L. Rev. 85 (1992) [hereinafter Epstein, Custom and Law] (discussing particular circumstances of International News and general system of property rights surrounding it);
64. Justin Hughes, The Philosophy of Intellectual Property, 77 Geo. L.J. 287 (1988) (exploring philosophical justifications for granting property rights to ideas).
65. Nat'l Basketball Ass'n, 105 F.3d at 853, 855.
66. Mark A. Lemley, Beyond Preemption: The Law and Policy of Intellectual Property Licensing, 87 Calif. L. Rev. 111 (1999) (discussing ability of parties to contract over use of intellectual property while analyzing proposed change to Uniform Commercial Code);
67. Raymond T. Nimmer, Licensing in the Contemporary Information Economy, 8 Wash. U. J.L. & Pol'y 99 (2002) (analyzing licensing of information).
68. Robert Cooter & Thomas Ulen, Law and Economics 100 (1988) (noting "[o]ne well-confirmed result in the literature on bargaining is that bargainers are more likely to cooperate when their rights are clear," which explains "why property law favors criteria for determining ownership that are clear and simple").
69. Jason Scott Johnston, Bargaining Under Rules Versus Standards, 11 J.L. Econ. & Org. 256-257 (1995) (arguing, against conventional wisdom, that judicial ex post balancing test may result in more efficient bargaining than ex ante clearly defined rule, given existence of private information about value and harm).
70. Craig Allen Nard, Certainty, Fence Building, and the Useful Arts, 74 Ind. L.J. 759-60 (1999).
71. Henry E. Smith, Exclusion and Property Rules in the Law of Nuisance, 90 Va. L. Rev. 965-75 (2004) [hereinafter Smith, Law of Nuisance] ("Under an exclusion regime, the law uses a rough informational variable or signal-such as entry-to define the right, and thus bunches together a range of uses that juries, judges, and other officials need never measure directly." (emphasis omitted));
72. Henry E. Smith, Exclusion Versus Governance: Two Strategies for Delineating Property Rights, 31 J. Legal Stud. S454-55 (2002) [hereinafter Smith, Two Strategies] ("In exclusion, decisions about resource use are delegated to an owner who, as gatekeeper, is responsible for deciding on and monitoring specific activities with respect to the resource.");
73. Henry E. Smith, Property and Property Rules, 79 N.Y.U. L. Rev. 1755-56 (2004) [hereinafter Smith, Property Rules] ("In an exclusion strategy, the law sets up rough signals (informational variables, proxies) defining the boundaries of the asset. Within this zone of protection, owners have the choice of how to invest in or consume the asset." (emphasis omitted)).
74. H Smith, Law of Nuisance, supra note 52, at 973;
75. Henry E. Smith, Institutions and Indirectness in Intellectual Property, 157 U. Pa. L. Rev. 2083, 2120 (2009) ("The modular structure of exclusion-based intellectual property rights. makes. contracting more tractable.").
76. Kenneth J. Arrow, Economic Welfare and the Allocation of Resources for Invention, in The Rate and Direction of Inventive Activity 609-615 (Nat'l Bureau of Econ. Research ed., 1962) ("[T]here is a fundamental paradox in the determination of demand for information; its value for the purchaser is not known until he has the information, but then he has in effect acquired it without cost.").
77. Robert P. Merges, A Transactional View of Property Rights, 20 Berkeley Tech. L.J. 1477-1490, (2005) [hereinafter Merges, Transactional View]. For an application to trade secrets law.
78. Mark A. Lemley, The Surprising Virtues of Treating Trade Secrets as IP Rights, 61 Stan. L. Rev. 311-37 (2008).
79. Merges, Transactional View, supra note 55, at 1489-504.
80. Victoria Smith Ekstrand, News Piracy and the Hot News Doctrine 72 (2005) (citing Brief for Respondent at 10, Int'l News Serv. v. Associated Press, 248 U.S. 215 (1918) (No. 221)).
81. Singleton, supra note 19.
82. 608 F. Supp. 2d 454, 457 (S.D.N.Y. 2009); Complaint at 12-13, Associated Press v. All Headline News Corp., No. 08 Civ. 00323 (S.D.N.Y. Jan. 14, 2008).
83. Complaint at 1-2, 4-14, Associated Press v. Moreover Techs., Inc., No. 07 Civ. 8699 (S.D.N.Y. Oct. 9, 2007).
84. Id. at 11-12.
85. In the former action, the court ruled in favor of the plaintiff on its claims of hot news misappropriation and copyright infringement, and against the defendant's motion to dismiss. Associated Press, 608 F. Supp. 2d at 458-62. The AP has since asserted that the hot news doctrine that developed in such actions "was important to [its] efforts to protect its intellectual property." FTC Discussion Draft, supra note 24, at 10.
86. James Gibson, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L.J. 882-85 (2007).
87. See, e.g., id. at 887 (observing how uncertainty exacerbates this risk aversion).
88. This distinction is usually traced back to the work of Wesley Hohfeld. Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 Yale L.J. 710-19 (1917) [hereinafter Hohfeld, Fundamental Conceptions] (analyzing use of legal conceptions such as "in personam" and "in rem").
89. Thomas W. Merrill & Henry E. Smith, The Property/Contract Interface, 101 Colum. L. Rev. 773 (2001).
90. Hohfeld, Fundamental Conceptions, supra note 65, at 718;
91. Albert Kocourek, Rights in Rem, 68 U. Pa. L. Rev. 322 (1920).
92. Int'l News Serv. v. Associated Press, 248 U.S. 215, 236 (1918) ("[F]or this purpose, and as between them, it must be regarded as quasi property, irrespective of the rights of either as against the public.").
93. Id. at 239 ("The fault in the reasoning lies in applying as a test the right of the complainant as against the public, instead of considering the rights of complainant and defendant, competitors in business, as between themselves.").
94. For a similar claim alluding to this distinction, see Gordon, Restitutionary Impulse, supra note 34, at 211 (describing restitutionary interest as relational). that the idea of a relational interest as used by Gordon bears no connection to the well-known category made popular by tort scholar Leon Green.
95. Leon Green, Relational Interests, 29 Ill. L. Rev. 460 (1934) (developing an independent category of relational interests in the common law).
96. See Nat'l Basketball Ass'n v. Motorola, Inc., 105 F.3d 841, 852 (2d Cir. 1997) (framing competition as competitive product or service rather than competitive firm).
97. See U.S. Golf Ass'n v. St. Andrews Sys., Data-Max, Inc., 749 F.2d 1028, 1037-38 (3d Cir. 1984) (finding "absence of direct competition" dispositive in case).
98. See, e.g., Barclays Capital Inc. v. Theflyonthewall.com, 700 F. Supp. 2d 310, 336-39 (S.D.N.Y. 2010) (condemning Fly's actions as using Barclay's work as a substitute for its own by "systematically gathering and selling the [f]irms' [r]ecommendations to investors"); X17, Inc. v. Lavandeira, 563 F. Supp. 2d 1102, 1107-09 (C.D. Cal. 2007) (finding significant that defendant's activities will "remove X17's incentive to gather the photographs and threaten the continued existence of X17's business").
99. See supra notes 39-45 and accompanying text (discussing newspapers' efforts to use property right to enjoin free riders).
100. Shyamkrishna Balganesh, Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions, 31 Harv. J.L. & Pub. Pol'y 593-643 (2008) [hereinafter Balganesh, Right to Exclude] (describing origins of this distinction in equity and its implications for property doctrine).
101. See Green, supra note 69, at 461 (documenting this phenomenon among courts).
102. See, e.g., Associated Press v. KVOS, Inc., 80 F.2d 575, 582-83 (9th Cir. 1935) (granting preliminary injunctive relief); Triangle Publ'ns, Inc. v. New Eng. Newspaper Publ'g Co., 46 F. Supp. 198, 204 (D. Mass. 1942) (granting injunctive relief to plaintiff despite defendant's request for an exception); Dior v. Milton, 155 N.Y.S.2d 443, 463 (Sup. Ct. 1956) (denying motion to dismiss complaint and injunctive relief). But see U.S. Sporting Prods., Inc. v. Johnny Stewart Game Calls, Inc., 865 S.W.2d 214, 219 (Tex. App. 1993) (observing that injunctive relief was not only remedy available in hot news cases under Texas law).
103. The Federal Circuit had developed a similar "automatic injunction" rule for patent infringement, which the Supreme Court recently abrogated. See eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 393-94 (2006) (eliminating automatic injunction rule and requiring courts to use traditional four-factor test in deciding whether to grant injunctive relief).
104. Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089-93 (1972) (explaining why entitlements should receive property rule protection); see also Balganesh, Right to Exclude, supra note 74, at 649-57 (discussing remedial conception of property).
105. See Smith, Property Rules, supra note 52, at 1724 (discussing and critiquing this connection).
106. Shyamkrishna Balganesh, Debunking Blackstonian Copyright, 118 Yale L.J. 1126-1133 (2009) (describing property absolutism and essentialism). For criticism of unidimensional property thinking along these lines.
107. Hanoch Dagan, The Craft of Property, 91 Calif. L. Rev. 1517 (2003) (criticizing Court's opinion in United States v. Craft for doing this in relation to marital property);
108. Hanoch Dagan, Property and the Public Domain, 18 Yale J.L. & Human. 84 (2006) (applying this critique to intellectual property scholarship's relationship to property ideas and concepts).
109. Int'l News Serv. v. Associated Press, 248 U.S. 215, 267 (1918) (Brandeis, J., dissenting) ("Courts are ill-equipped to make the investigations which should precede a determination of the limitations which should be set upon any property right in news.").
110. Id. at 236 (majority opinion).
111. See, e.g., Newman v. Sathyavaglswaran, 287 F.3d 786, 797 (9th Cir. 2002) (noting that quasi-property nomenclature has "little meaningful legal significance");
112. Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 Yale L.J. 1-20 (2000) [hereinafter Merrill & Smith, Optimal Standardization] (criticizing doctrine of misappropriation for having "taken on a life of its own").
113. Gordon, Restitutionary Impulse, supra note 34, at 267 (arguing that Court may have borrowed the idea of quasi-property from quasi-contract);
114. Peter Birks, An Introduction to the Law of Restitution 29-39 (1985) [hereinafter Birks, Restitution] (explaining development of term "quasi-contract" and its connection to unjust enrichment in common law).
115. Schall v. Camors, 251 U.S. 239, 254 (1920) (Pitney, J.) (commenting that principle of "reaping without sowing" adds an element of unjust enrichment).
116. Callmann, What is Unfair?, supra note 35, at 606-07 n.56;
117. John P. Dawson, The Self-Serving Intermeddler, 87 Harv. L. Rev. 1409-17 (1974) (discussing International News in context of restitution law's rules against recovery by a self-serving intermeddler).
118. International News, U.S. at 240.
119. See Baird, Uneasy Legacy, supra note 9 (discussing International News and historical background to it).
120. International News, 248 U.S. at 235, 240.
121. See United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 97 (1918) ("The law of trade-marks is but a part of the broader law of unfair competition."); Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 259 (1917) (describing facts as meriting "an injunction to restrain... unfair competition"); G. & C. Merriam Co. v. Saalfield & Ogilvie, 241 U.S. 22, 24 (1916) (noting that case involves "unfair competition in the business of publishing and selling dictionaries"); Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 413 (1916) (observing how common law of trademarks was part of broader area of unfair competition); Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 256 (1916) (describing case as "one of unfair competition without trade-mark infringement").
122. See 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.11 (2010) (providing overview of protection for factual works such as news).
123. See Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1371-72 (5th Cir. 1981) (denying copyright protection to factual content of news stories).
124. Though ironically, a vastly greater percentage of their advertising revenue comes from the non-news parts of newspapers, which they use to cross-subsidize news collection. The more targeted forms of advertising that these other, special interest sections allow for explains this reality.
125. Hal Varian, Newspaper Economics: Online and Offline, Google Public Policy Blog (Mar. 9, 2010, 9:00 AM), at http://googlepublicpolicy.blogspot.com/2010/03/newspaper-economics-online-and-offline.html (on file with the Columbia Law Review) (noting most advertising revenue for newspapers comes primarily from "special interest sections" rather than from news).
126. For an excellent overview of the idea of time value in newsgathering and its emergence as a major source of competition among newspapers in the nineteenth century, Menahem Blondheim, News over the Wires: The Telegraph and the Flow of Public Information in America, 1844-1897, at 11-29 (1994).
127. Borrowing a phrase from Richard Epstein, this may be characterized as the "externality of. ignorance." Epstein, Custom and Law, supra note 47, at 113.
128. Int'l News Serv. v. Associated Press, 248 U.S. 215, 250 (1918) (Brandeis, J., dissenting) ("The general rule of law is, that the noblest of human productions- knowledge, truths ascertained, conceptions, and ideas-become, after voluntary communication to others, free as the air to common use.") Note
129. Id. at 230 (majority opinion) (noting that value of news "depends upon the promptness of transmission").
130. Id. at 235.
131. Id. at 240 (emphasis added).
132. See infra Part II.A.2.a.
133. See infra Part II.A.2.b.
134. See infra Part II.A.2.c.
135. See infra Part II.A.2.d.
136. For a discussion of this phenomenon, converting a prisoner's dilemma situation into a coordination game in other contexts, Dennis Chong, Collective Action and the Civil Rights Movement 103-07 (1991);
137. Jon Elster, Ulysses and the Sirens: Studies in Rationality and Irrationality 146 (1979);
138. Daniel H. Cole & Peter Z. Grossman, Institutions Matter! Why the Herder Problem Is Not a Prisoner's Dilemma, 69 Theory & Decision 219 (2008);
139. Barry R. Weingast, The Political Foundations of Democracy and the Rule of Law, 91 Am. Pol. Sci. Rev. 245-249 (1997).
140. For an excellent overview of how these developments occurred very shortly after the emergence of newsgathering as a commercial activity, see Victor Rosewater, History of Coöperative News-Gathering in the United States 14-20 (1930) ("[T]he Courier and Enquirer [were] bent on exposing those appropriating its news without credit....").
141. Id. at 18-19.
142. Isaac Clarke Pray, Memoirs of James Gordon Bennett and His Times 135 (1855).
143. Pray describes this incident as follows: The Courier and Enquirer a few days after the announcement of the fall of Warsaw, in the Polish War, in order to expose those who were guilty of appropriating news without credit, prepared a denial of the original account, and printed a small edition, prepared expressly to reach the offices of the morning journals [i.e., the free riders]. The statement purported to be gleaned from papers brought by the ship Ajax. There was no such arrival. The article was copied by several papers, and [one free riding local newspaper] sent it forth in the country edition as news which had been obtained originally by its own enterprise.... Other papers announced the news without giving any credit to the source of it. The hoax created much excitement among journalists; and the public, or that small portion of society, to which newspapers were familiar, enjoyed the joke.
144. Id. For an additional account of this event, Frederic Hudson, Journalism in the United States, from 1690-1872, at 347 (New York, Harper Bros. 1873).
145. See, e.g., Epstein, Custom and Law, supra note 47, at 97 (describing misappropriation as having affirmed industry norm against free riding).
146. Rosewater, supra note 105, at 14-20 (discussing cooperation in gathering "ship news in advance of docking");
147. Richard A. Schwarzlose, Cooperative News Gathering, in American Journalism: History, Principles, Practices 153-62 (W. David Sloan & Lisa Mullikin Parcell eds., 2002) (examining typical forms of cooperative newsgathering).
148. For a comprehensive history of this development, see generally id. (detailing cooperative newsgathering from its beginnings through rise of the AP). In discussing conditions in the industry around the early nineteenth century, Rosewater noted: "Because of the relative costliness of newsgathering and the extravagance of duplication, it was equally inevitable that this should lead to the initial steps for a union of effort." Rosewater, supra note 105, at 11.
149. Rosewater, supra note 105, at 19-20.
150. Associated Press v. Int'l News Serv., 245 F. 244, 245 (2d. Cir. 1917).
151. Int'l News Serv. v. Associated Press, 248 U.S. 215, 221 (1918).
152. Melville Stone notes that early in his tenure at the Chicago Daily News, he would lay traps to catch and expose such free riding. On one such occasion, he recalls that a competitor engaging in such free riding was "laughed to death" on exposure, and that within two years of the hoax/trap, it went out of business. Stone, supra note 40, at 63-64. Stone also notes that in due course, such traps and hoaxes, while amusing to the public, came to have little deterrent effect. Id. at 355. For a discussion of how the INS, too, was the target of such a hoax.
153. Baird, Uneasy Legacy, supra note 9, at 27 & n.44.
154. Stone, supra note 40, at 355 (describing practices of the Chicago Courier and American Press Association).
155. Recently, Wendy Gordon has argued that the Court in International News may have been sensitive to this concern.
156. Wendy J. Gordon, Harmless Use: Gleaning from Fields of Copyrighted Works, 77 Fordham L. Rev. 2411-2423 (2009) (observing how Court in International News may have been motivated by desire to avoid harm to "each organization's internal structure" and by "thought that if it refused to enjoin the defendant's copying, no entity could collect enough fees from the small newspapers to afford to send out national and overseas correspondents").
157. See Baird, Uneasy Legacy, supra note 9, at 24 ("AP routinely monitored the bulletins of other wire services and used them as a starting point for its own stories.").
158. Id. at 25.
159. Id. at 27;
160. Oliver Carlson & Ernest Sutherland Bates, Hearst: Lord of San Simeon 54-55 (1936) (observing how William Hearst, owner of INS, had effectively invented the process of creating news to report it).
161. See Epstein, Custom and Law, supra note 47, at 102 (noting that "using tips across the board allows all the papers to lower their cost of collecting information, without destroying the initial incentive to produce information in the first place" provided that "there is independent investigation of the tip" and "information printed in the story is obtained through that investigation").
162. Associated Press v. Int'l News Serv., 240 F. 983, 991 (S.D.N.Y. 1917) (A. Hand, J.).
163. See id. ("In many cases the verification with modern telephonic communication would be so rapid that the time required for it would in no sense protect the original gatherer of the news.").
164. Id.
165. Associated Press v. Int'l News Serv., 245 F. 244, 247-48 (2d Cir. 1917).
166. Id. at 247-253.
167. Baird, Uneasy Legacy, supra note 9, at 27.
168. See Epstein, Custom and Law, supra note 47, at 113-14 ("Pitney describes the defendant's interest in its news as 'quasi property,' which is good only for a short period of time (less than a day) and then only against the direct competitor of the plaintiff....").
169. Int'l News Serv. v. Associated Press, 248 U.S. 215, 231 (1918).
170. Id. at 243-44 (discussing industry practice of using tips).
171. See Merrill & Smith, Optimal Standardization, supra note 83, at 26-34 (arguing that concern with information cost externalities lies at root of numerus clausus principle). Merrill and Smith argue that the Court in International News violated the numerus clausus principle by choosing to create what was in effect a property right. Id. at 19. Yet if the roots of the misappropriation doctrine are thought to lie in unjust enrichment instead, the Court did in fact adhere to the common law's numerus clausus.
172. International News, 248 U.S. at 235.
173. Id. at 234.
174. Id. at 236.
175. For the classic articulation of this argument, Harold Demsetz, Toward a Theory of Property Rights, 57 Am. Econ. Rev. 347 (1967).
176. Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action 12-18 (1990) (describing governance as alternative to property-based privatization).
177. For a detailed discussion of this type of pool arrangement in the intellectual property context, described as a "private liability rule organization," Robert P. Merges, Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations, 84 Calif. L. Rev. 1293-1303 (1996) (internal quotation marks omitted).
178. Yochai Benkler, The Wealth of Networks 338-44 (2006) (discussing these approaches and identifying examples);
179. Michael J. Madison et al., Constructing Commons in the Cultural Environment, 95 Cornell L. Rev. 657-692 (2010) (identifying these types of common pool arrangements of intellectual property as "solutions to collective action, coordination, or transaction cost problems").
180. See By-Laws of the Associated Press of New York, art. VIII, § 4, reprinted in Rosewater, supra note 105, app. II at 403 ("[I]n places where the Corporation has no correspondent the members shall supply the news required to be furnished by them in such a manner as may be required by the Board of Directors.").
181. For an early identification of this problem, see Comment, The Associated Press Case, 28 Yale L.J. 387-389 n. 9 (1919).
182. Epstein, Custom and Law, supra note 47, at 112-13. Epstein's reading of International News is somewhat perplexing. At the very beginning of the majority opinion, Justice Pitney made the following observation: "We need spend no time ... upon the ... question of property in news matter at common law .... [Unfair competition] does not depend upon any general right of property analogous to the common-law right of the proprietor of an unpublished work to prevent its publication without his consent ...." Int'l News Serv. v. Associated Press, 248 U.S. 215, 234-35 (1918). Justice Pitney thus clearly sought to avoid deciding the question of property in news, since his theory did not necessitate an answer to this question.
183. International News, 248 U.S. at 245-46.
184. Baird, Uneasy Legacy, supra note 9, at 29 & n.50. Baird also notes that Justice Pitney's opinion for the majority used a hypothetical to describe a case that bore no resemblance to the facts of the actual dispute.
185. Id. at 29.
186. Associated Press v. Int'l News Serv., 245 F. 244, 253 (2d Cir. 1917).
187. Baird, Uneasy Legacy, supra note 9, at 30. For a discussion of the defendant's continuing free riding after the decision, see Ferdinand Lundberg, Imperial Hearst: A Social Biography 209 (1936).
188. One could argue that the Court was aware of this problem. Toward the end of the opinion, it conceded that the injunction might suffer from certain infirmities, including the possibility of overbreadth. Yet, it affirmed the injunction on the assumption that the lower court would determine this question on remand.
189. International News, 248 U.S. at 245-46.
190. Id. at 240.
191. Gary T. Schwartz, Mixed Theories of Tort Law: Affirming Both Deterrence and Corrective Justice, 75 Tex. L. Rev. 1801-1818 & nn.128-129 (1997) (describing structural tensions in tort doctrine).
192. This limitation is often referred to as the common law's (or tort law's) bipolarity constraint. Jules L. Coleman, Risks and Wrongs 376-82 (1992) (noting disjunction between economic theories of deterrence and structure of tort law).
193. Robert Cooter, Prices and Sanctions, 84 Colum. L. Rev. 1523 (1984) ("[E]conomists tend to view law as a set of official prices.").
194. This intuition also tracks arguments about when liability rules are likely to be better than property rules at inducing a bargain between parties.
195. Ian Ayres & Eric Talley, Solomonic Bargaining: Dividing a Legal Entitlement to Facilitate Coasean Trade, 104 Yale L.J. 1027-1065 (1995) (observing untailored damages have information-forcing quality that makes them best suited to incentivizing bargaining);
196. Louis Kaplow & Steven Shavell, Property Rules Versus Liability Rules: An Economic Analysis, 109 Harv. L. Rev. 713-20 (1996) (observing that when courts are uncertain about exact magnitude of harm but impose damages based on their "best estimate" that are "correct on average," liability rules are superior to property rules in forcing a bargain).
197. Indeed, after the Court's decision in International News, the AP changed its practices to differentiate its content from those of its competitors. See Baird, Uneasy Legacy, supra note 9, at 31.
198. Mancur Olson, The Logic of Collective Action 1-3 (1965).
199. For example, if individuals had to pay newspapers for every use of factual information, the net effect would be to deter the free dissemination of information among individuals, producing enormous inefficiencies. Though sympathetic to property rights in news, even Epstein characterizes such a result as "grotesque." Epstein, Custom and Law, supra note 47, at 113.
200. See Int'l News Serv. v. Associated Press, 248 U.S. 215, 229 (1918) (indicating AP consisted of about 950 daily newspapers in 1918); id. at 248 & n.1 (Brandeis, J., dissenting) (noting in 1918 there were 2,500 papers published in the United States).
201. See Associated Press v. United States, 326 U.S. 1, 3-4 (1945) (stating AP had over 1,200 newspapers as members in 1945); Associated Press, FAQs, at http://www.ap.org/ pages/about/faq.html#2 (on file with the Columbia Law Review) (last visited Feb. 11, 2011) (indicating AP "serves 1,700 newspapers"); Pew Research Ctr., Project for Excellence in Journalism, Number of U.S. Daily Newspapers, 5 Year Increments, 1940-2005 (2007), at http://www.journalism.org/node/1134 (on file with the Columbia Law Review) (noting there were 1,749 daily newspapers in 1945 and 1,452 in 2005). In addition to the general growth of cooperative newsgathering, these numbers also reflect the growing importance of AP vis-a-vis other news cooperatives that have since ceased to exist, such as the INS and the United Press International (UPI).
202. See Schwarzlose, supra note 109, at 158-61 (describing how INS and UPI, AP's main competitors, eventually merged and then collapsed).
203. In England, the principle of unjust enrichment is usually traced back to the opinion of Lord Mansfield in Moses v. Macferlan, (1760) 97 Eng. Rep. 676 (K.B.), though as an idea many trace it back to Roman law.
204. D.J. Ibbetson, A Historical Introduction to the Law of Obligations 264 (1999) (tracing foundations of unjust enrichment to Roman law);
205. Andrew Kull, James Barr Ames and the Early Modern History of Unjust Enrichment, 25 Oxford J. Legal Stud. 297-311 (2005) (describing Moses v. Macferlan).
206. Hanoch Dagan, The Law and Ethics of Restitution 11-12 (2004) [hereinafter Dagan, Law and Ethics] (critiquing dominant role of unjust enrichment in American restitution law);
207. Steve Hedley, Restitution: Its Division and Ordering 200 (2001) (describing "rise[] and fall[]" of unjust enrichment theory in American law);
208. G.H.L. Fridman, Unjust Enrichment (Dis)Contented, in Understanding Unjust Enrichment 35, (Jason W. Neyers et al. eds., 2004) ("[I]t is open to question whether the concept of unjust enrichment is indeed a venerable equitable principle." (internal quotation marks omitted));
209. Dennis Klimchuk, The Normative Foundations of Unjust Enrichment, in Philosophical Foundations of the Law of Unjust Enrichment 81(Robert Chambers et al. eds., 2009) (describing possible justifications for unjust enrichment).
210. Dagan, Law and Ethics, supra note 157, at 26 (discussing extensive criticism of unjust enrichment and suggesting "viewing unjust enrichment as a loose framework as well as an invitation for a normative inquiry").
211. See Restatement (Third) of Restitution and Unjust Enrichment § 1 cmt. b (Tentative Draft No. 7, 2010) ("The law of restitution is the law of unjust enrichment.").
212. Peter Birks, Unjust Enrichment 3 (2d ed. 2005) [hereinafter Birks, Unjust Enrichment] ("The law of unjust enrichment is the law of all events materially identical to the mistaken payment of a non-existent debt.").
213. Id. at 16.
214. See Restatement (Third) of Restitution and Unjust Enrichment § 1 cmt. a (Tentative Draft No. 7) ("The use of the word 'restitution' to describe the cause of action as well as the remedy is likewise inherited from the original Restatement, despite the problems this usage entails.").
215. Birks, Unjust Enrichment, supra note 160, at 39. Birks identifies two more questions, relating to the nature of the remedial right that the plaintiff acquires and possible defenses that a defendant could invoke. Id. I omit these from the analysis for now, since they go less to liability and more to the issue of response.
216. See supra Part II.A.1 (describing market harm resulting from free riding). See generally Mitchell McInnes, Resisting Temptations to Justice, in Philosophical Foundations of the Law of Unjust Enrichment, supra note 157, at 100, 101 ("American courts regularly have manipulated the principle of unjust enrichment in the service of 'higher' ends ...."). Indeed, even Peter Birks, an ardent defender of the internal logic of the common law's requirement that the benefit be unjust, concedes that certain instances of restitution are policy-motivated insofar as they deviate from the traditional approach to identifying an enrichment as unjust. The traditional approach bases restitution on criteria internal to the plaintiff-defendant relationship. Birks, Restitution, supra note 84, at 294.
217. Peter Birks, Unjust Enrichment and Wrongful Enrichment, 79 Tex. L. Rev. 1767-1783 (2001) (arguing for need to distinguish the two ideas).
218. Id. at 1789 ("Liability in unjust enrichment has in principle nothing whatsoever to do with fault.").
219. See infra Part II.B.1.
220. See infra Part II.B.2.
221. See infra Part II.B.3.
222. See 2 George E. Palmer, The Law of Restitution § 10.1 (1978) ("[T]he fuller meaning of the word [volunteer] can be understood only against the background of a long-standing judicial reluctance to encourage one person to intervene in the affairs of another ....");
223. Dawson, supra note 86, at 1409 ("The antipathy. in our law of restitution toward intermeddlers who confer unsolicited benefits. is addressed almost equally to altruists and self-seekers.");
224. John D. McCamus, The Self-Serving Intermeddler and the Law of Restitution, 16 Osgoode Hall L.J. 515-19 (1978) ("[T]he restitutionary entitlement of the self-interested intermeddler has only received sporadic and precarious recognition.").
225. McCamus, supra note 171, at 518-19. Indeed, the Restatement now mentions the rule. See Restatement (Third) of Restitution and Unjust Enrichment § 23 (Tentative Draft No. 2, 2002).
226. Saul Levmore, Explaining Restitution, 71 Va. L. Rev. 65-80 (1985).
227. Id.
228. Restatement (Third) of Restitution and Unjust Enrichment § 23 cmt. a (Tentative Draft No. 2) (describing this idea in terms of "transactional autonomy"); Birks, Restitution, supra note 84, at 115.
229. Wendy J. Gordon, Of Harms and Benefits: Torts, Restitution, and Intellectual Property, 21 J. Legal Stud. 449-77 (1992) [hereinafter Gordon, Harms and Benefits]. Gordon builds this argument around Levmore's market encouragement idea. See id. at 453 n.12 ("[T]his article builds on, rather than repudiates, Levmore's analysis.").
230. Id. at 472 ("[I]n the intellectual-property setting, giving creators restitutionary rights tends to encourage consensual markets.").
231. Id. at 473.
232. Id. at 477.
233. Int'l News Serv. v. Associated Press, 248 U.S. 215, 234 (1918) ("It is not to be supposed that the framers of the Constitution, when they empowered Congress 'to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries' (U.S. Const. art. 1, § 8, cl. 8), intended to confer upon one who might happen to be the first to report a historic event the exclusive right for any period to spread the knowledge of it.").
234. Restatement (Third) of Restitution and Unjust Enrichment § 24 (Tentative Draft No. 2, 2002);
235. Dagan, Law and Ethics, supra note 157, at 125-26 (explaining justification for Restatement rule);
236. Daniel Friedmann, Unjust Enrichment, Pursuance of Self-Interest, and the Limits of Free Riding, 36 Loy. L.A. L. Rev. 831-57 (2003) [hereinafter Friedmann, Unjust Enrichment] (explaining "community of interests" concept, where plaintiff's reimbursement "is predicated [on] the existence of a plaintiff's interest and a reasonable expenditure he made in order to protect his interest in circumstances where the expenditure must also necessarily protect the interest of others.There must also be a sufficient proximity between the interests involved").
237. See, e.g., Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 163 (1939) (finding it within power of court of equity to order bondholders to reimburse litigant who brought a claim against a collapsing bank that permitted her fellow bondholders to subsequently bring their claims as well); Trustees v. Greenough, 105 U.S. 527, 532-33 (1881) ("[W]here one of many parties having a common interest in a trust fund, at his own expense takes proper proceedings to save it from destruction and to restore it to the purposes of the trust, he is entitled to reimbursement ...."); United Carolina Bank v. Caroprop, Ltd., 446 S.E.2d 415, 416-17 (S.C. 1994) (holding plaintiff who made mortgage payments and paid "past-due real estate taxes" on behalf of cotenant was entitled to reimbursements); Wallersteiner v. Moir (No. 2), (1975) 1 Q.B. 373, 391 (Lord Denning M.R.) (Eng.) (stating minority shareholder in derivative action entitled "to be indemnified by the company against all costs and expenses reasonably incurred by him" while acting on company's behalf). For a discussion of this extension and its logic, see Friedmann, Unjust Enrichment, supra note 181, at 857-58.
238. See Dawson, supra note 86, at 1414 (linking shared interest exception to Mancur Olson's writings on collective action problem).
239. Consider the situation of four equal co-owners of a piece of land. Each of them earns an annual rent of $4,000 from the land. Now, assume that a situation arises where the entirety of the rental income (the total $16,000) comes under threat (for example, because of failure to fulfill a regulatory requirement), which requires one of them to act in a timely manner to save the income in its entirety for a given year. Assume that this action costs an individual co-owner $5,000. If a co-owner believes that his expenditure of this amount (the cost) is to be weighed only against his own benefit, he would have little incentive to pay that amount. On the other hand, if he knows that he can spend this money upfront and then eventually recover it from his co-owners on an equal basis, the benefits (the rental income of $4,000) exceed the prorated cost (Philip Meyer, The Vanishing Newspaper: Saving Journalism in the Information Age 5 (2d ed. 2009) (noting decline of newspaper influence, profitability, and household penetration);
240. Frank Ahrens, The Accelerating Decline of Newspapers, Wash. Post, Oct. 27, 2009, at A15 (describing how today's newspaper circulation numbers are lowest in history);
241. Eric Alterman, Out of Print: The Death and Life of the American Newspaper, New Yorker, Mar. 31, 2008, at 48-49 (discussing how newspapers in their current printed form are unlikely to survive).
242. Newspaper Ass'n of Am., Advertising Expenditures, at http://www.naa.org/TrendsandNumbers/Advertising-Expenditures.aspx (on file with the Columbia Law Review) (last updated Mar. 2010).
243. Pew Research Ctr., Project for Excellence in Journalism, The State of the News Media 2010, Number of U.S. Daily Newspapers: Weekday and Sunday Editions, Yearly Increments, 1990-2008, at http://www.stateofthemedia.org/2010/chartland.php?msg=1&id=1312&ct=line&dir=&sort=&c1=1&c2=1&c3=1&c4=1&c5=0&c6=0&c7=0&c8=0&c9=0&c10=0&d3=0&dd3=1 (on file with the Columbia Law Review) (last visited Feb. 11, 2011).
244. Steven Petersen & Ryan Sidlik, The Associated Press Intellectual Prop. Initiative (2009), available at http://www.bivings.com/thelab/presentations/AP_Intellectual_Property_Bivings.pdf (on file with the Columbia Law Review) (discussing Associated Press initiative to "crack down on sites that it claims use its intellectual property improperly").
245. See Associated Press, Protect, Point, Pay-An Associated Press Plan for Reclaiming News Content Online, available at http://www.niemanlab.org/pdfs/ProtectPointPay.pdf (on file with the Columbia Law Review) (last visited Feb. 11, 2011) (describing licensing market at heart of this idea).
246. See Feist Publ'ns Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344-48 (1991) (observing how mere facts are excluded from copyright law, absent original expression).
247. See Owning the News: Copyrighting Facts as Well as Words, Economist, June 26, 2010, at 63 (discussing proposed heightened protections for newspapers and potential impact on ability to copyright facts).
248. 248 U.S. 215 (1918).
249. Douglas G. Baird, The Story of INS v. AP: Property, Natural Monopoly, and the Uneasy Legacy of a Concocted Controversy, in Intellectual Property Stories 9 (Jane C. Ginsburg & Rochelle Cooper Dreyfuss eds., 2006) [hereinafter Baird, Uneasy Legacy] (discussing case background and ramifications).
250. International News, 248 U.S. at 236.
251. Id. at 239-40.
252. Id. at 258 (Brandeis, J., dissenting).
253. See Newman v. Sathyavaglswaran, 287 F.3d 786, 797 & n.13 (9th Cir. 2002) (describing quasi-property as a "term with little meaningful legal significance").
254. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) ("There is no federal general common law.").
255. See, e.g., Standard & Poor's Corp. v. Commodity Exch., Inc., 683 F.2d 704, 710-12 (2d Cir. 1982) (New York law); Bd. of Trade v. Dow Jones & Co., 439 N.E.2d 526, 537 (Ill. App. Ct. 1982) (Illinois law); Columbia Broad. Sys., Inc. v. Melody Recordings, Inc., 341 A.2d 348, 353 (N.J. Super. Ct. App. Div. 1975) (New Jersey law). Nat'l Basketball Ass'n v. Motorola, Inc., 105 F.3d 841, 852-53 (2d Cir. 1997).
256. Id.
257. Id. at 853. What is ironic in all of this is that the Second Circuit ultimately denied the plaintiff's claim. Yet, its holding and analysis have spurred a robust body of case law, especially in the Second Circuit.
258. Dean Singleton, Chairman, Associated Press, Remarks at the Associated Press Annual Meeting (Apr. 6, 2009), at http://www.ap.org/pages/about/pressreleases/pr_040609c.html (on file with the Columbia Law Review).
259. Press Release, Associated Press, Associated Press to Build News Registry to Protect Content (July 23, 2009), available at http://www.ap.org/pages/about/pressreleases/pr_072309a.html (on file with the Columbia Law Review).
260. More recently, the U.S. Department of Justice (DOJ) issued a letter supporting AP's actions, creating the registry, and noting that it was unlikely to run afoul of the antitrust laws. See Letter from Christine A. Varney, Assistant Attorney Gen., U.S. Dep't of Justice, Antitrust Div., to William J. Baer, Esq., Arnold & Porter LLP (Mar. 31, 2010), available at http://www.justice.gov/atr/ public/busreview/257318.htm (on file with the Columbia Law Review) ("[T]he Department has no present intention to challenge the AP's Registry proposal... [as it] is not likely to result in anticompetitive harm and... it may provide procompetitive benefits to participating content owners and users."). Of course, the DOJ's support says nothing of AP's position on the ownership of news.
261. See, e.g., Associated Press v. All Headline News Corp., 608 F. Supp. 2d 454, 458-61 (S.D.N.Y. 2009) ("A cause of action for misappropriation of hot news remains viable under New York law, and the Second Circuit has unambiguously held that it is not preempted by federal law.").
262. See, e.g., Barclays Capital Inc. v. Theflyonthewall.com, 700 F. Supp. 2d 310, 313 (S.D.N.Y. 2010) ("The [plaintiff financial services] firms contend that their recommendations are 'hot news' and that the regular, systematic, and timely taking and redistribution of their recommendations constitutes misappropriation...."); Complaint ¶ 7, Dow Jones & Co., Inc. v. Briefing.com, Inc., No. 1:10-cv-03321 (S.D.N.Y. Apr. 20, 2010) ("Briefing.com... unfairly competes with Dow Jones in the delivery of 'hot news' and tortiously misappropriates Dow Jones' headlines and articles from the DJN.").
263. Theflyonthewall.com, a defendant in one of the cases previously cited, had in fact commenced an action for hot news misappropriation against another small competitor, Tradethenews.com, and settled the matter before a verdict. See Barclays Capital Inc., 700 F. Supp. 2d at 327-28 (explaining allegations as including misappropriation of "Fly's valuable, time-sensitive, proprietary information by broadcasting content from Fly's newsfeed on its own website within seconds of the content being posted"). The court in Barclays used the prior case to deny the defendant's claim that there was a strong industrywide norm against owning news and information that was publicly distributed. Id. at 338 ("Fly's argument that its practices are in accordance with prevailing industry norms-that, in essence, no one 'owns' financial information once it is released-is further undermined by Fly's use of the hot-news misappropriation theory to sue one of its competitors, TTN.").
264. Fed. Trade Comm'n, Potential Policy Recommendations to Support the Reinvention of Journalism 5-17 (Discussion Draft 2010) [hereinafter FTC Discussion Draft], available at www.ftc.gov/opp/workshops/news/jun15/docs/new-staff-discussion.pdf (on file with the Columbia Law Review).
265. Id. at 9-11.
266. Id. at 10.
267. For some criticisms of the FTC's study in the newspaper media, see Jeremy W. Peters, Government Takes on Journalism's Next Chapter, N.Y. Times, June 14, 2010, at B7 (collecting criticisms of FTC paper from journalists, media watchdogs, and academics); Editorial, FTC Floats Drudge Tax: Journalism Can Reinvent Itself Without Government 'Help,' Wash. Times, June 4, 2010, at http://www.washingtontimes.com/news/2010/jun/ 4/ftc-floats-drudge-tax/ (on file with the Columbia Law Review) ("The Federal Trade Commission... is seeking ways to 'reinvent' journalism, and that's a cause for concern."). For the most substantive response to the proposals to date, see Google, Inc., Comments on Federal Trade Commission's News Media Workshop and Staff Discussion Draft on "Potential Policy Recommendations to Support the Reinvention of Journalism" 2 (2010), available at www.google.com/googleblogs/pdfs/google_ftc_news_media_comments.pdf (on file with the Columbia Law Review) ("Regulatory proposals that undermine the functioning of healthy marketplaces and stall the pace of change are not the solution.").
268. References in this Article to "misappropriation" and "the misappropriation doctrine" should be understood as referring to hot news misappropriation-i.e., the cause of action that is traced back to International News and the unique quasi-property doctrine that the Court formulated in that case. The two terms are used interchangeably throughout. It very importantly does not include the more generic idea of misappropriation, which extends beyond these situations and is often invoked in relation to trade secrets, goodwill, and other intangibles.
269. Richard A. Posner, Misappropriation: A Dirge, 40 Hous. L. Rev. 621-41 (2003) (discussing misappropriation as stand-alone doctrine that originated in International News);
270. Leo J. Raskind, The Misappropriation Doctrine as a Competitive Norm of Intellectual Property Law, 75 Minn. L. Rev. 875-876 (1991) (referring to misappropriation as doctrine that originated in International News).
271. See infra Part II.A.1 (discussing how free riding of some newspapers incentivizes free riding by most participants in market, leading to slower collection and dissemination of news).
272. See infra Part II.A.2.a-b (discussing evolution of formal and informal types of cooperation among newspapers).
273. See infra Part II.A.2.c (describing problems that arise from granting individual property right in news).
274. Mark A. Lemley, Property, Intellectual Property, and Free Riding, 83 Tex. L. Rev. 1031-46 (2005) ("Courts applying the property theory of intellectual property are seeking out and eliminating uses of a right they perceive to be free riding.").
275. See infra Part II.B (discussing interrelationship between unjust enrichment principle and misappropriation doctrine).
276. Perhaps the only scholar to recognize this connection early on was Rudolf Callmann. Rudolf Callmann, He Who Reaps Where He Has Not Sown: Unjust Enrichment in the Law of Unfair Competition, 55 Harv. L. Rev. 595-97 (1942) (noting that INS v. AP "in effect imported into the law of unfair competition the concept of unjust enrichment").
277. Yet, Callmann's analysis paid scant attention to the nuances of unjust enrichment doctrine and its structural contribution to the debate about misappropriation, focusing almost entirely on unfair competition, Callmann's principal area of interest at the time. Nearly half a century later, Wendy Gordon's work on intellectual property's "restitutionary impulse" also examined this interface in some detail.
278. Wendy J. Gordon, On Owning Information: Intellectual Property and the Restitutionary Impulse, 78 Va. L. Rev. 149-244 (1992) [hereinafter Gordon, Restitutionary Impulse] ("[T]he restitutionary cause of action is a species of unfair competition; this competition is deemed unfair because the law recognizes the restitutionary principle. This relationship between the two doctrinal categories should not be surprising. After all. International News Service. is a case of both unfair competition and unjust enrichment.").
279. For a recent discussion of unjust enrichment law in the European context, Anselm Kamperman Sanders, Unfair Competition Law: The Protection of Intellectual and Industrial Creativity 121-34 (1997) (examining unjust enrichment doctrine in Germany, France, the Netherlands, and the United Kingdom).
280. For early work trying to describe the area, Charles Bunn, The National Law of Unfair Competition, 62 Harv. L. Rev. 987-88 (1949) ("[W]e have a national law of unfair competition now. It is found in. the Federal Trade Commission Act of 1914, as amended by the Act of 1938.");
281. Rudolf Callmann, What is Unfair Competition?, 28 Geo. L.J. 585-607 (1940) [hereinafter Callmann, What is Unfair?] ("Only if we free the life of commercial competition from the role of a Cinderella. may the Law of Competition develop freely and without restraint.");
282. Zechariah Chafee, Unfair Competition, 53 Harv. L. Rev. 1289-1315 (1940) (explaining his theory of "Exploration" in which courts cautiously expand concept of unfair competition to include "a few new kinds of standardized wrongs");
283. Milton Handler, Unfair Competition, 21 Iowa L. Rev. 175-259 (1936) ("[T]he definition of unfair competition by administrative legislation is incomparably superior to definition by administrative decision.");
284. James Angell McLaughlin, Legal Control of Competitive Methods, 21 Iowa L. Rev. 274 (1936) ("Judicial development of [unfair competition] into closely related fields has been needlessly restricted by two leading cases.");
285. Ervin H. Pollack, A Projection for the Revaluation of Unfair Competition, 13 Ohio St. L.J. 187-235 (1952) ("The pattern of legislative, judicial and administrative experience has been sufficiently outlined to sketch a clear legislative picture of unfair competition but its details must be completed by administrative action.").
286. Hanoch Dagan, Unjust Enrichment: A Study of Private Law and Public Values 1-3 (1997) (noting components of unjust enrichment include "(i) a benefit (or enrichment); (ii) which has been received by the defendant at the plaintiff's expense; and (iii) the retention of which is unjust");
287. Christopher T. Wonnell, Replacing the Unitary Principle of Unjust Enrichment, 45 Emory L.J. 191-219 (1996) (discussing four distinct principles underlying liability based on unjust enrichment).
288. Richard A. Epstein, The Ubiquity of the Benefit Principle, 67 S. Cal. L. Rev. 1369-71 (1994) ("[T]he common law coach runs not on three substantive wheels, but on four.").
289. Ariel Porat, Private Production of Public Goods: Liability for Unrequested Benefits, 108 Mich. L. Rev. 189-190 (2009) (describing unjust enrichment law in terms of externalities).
290. Baird, Uneasy Legacy, supra note 9, at 11 ("Melville Stone is the person most responsible for developing the idea of a property right in news.").
291. These were the McMullen brothers, who owned the Chicago Post and the Chicago Mail. Id.;
292. Melville E. Stone, Fifty Years a Journalist 355-56 (1921) (describing practice of copying from newspapers without permission as "universal" and his desire to find legal remedy in the form of a property right).
293. ME Stone, supra note 40, at 337-38 (quoting Frederic Jennings, then General Counsel of the Associated Press).
294. Nat'l Tel. News Co. v. W. Union Tel. Co., 119 F. 294, 299-301 (7th Cir. 1902).
295. Int'l News Serv. v. Associated Press, 248 U.S. 215, 234-35 (1918).
296. Id. at 246-48 (Holmes, J., concurring).
297. Id. at 236 (majority opinion) ("Regarding the news, therefore, as but the material out of which both parties are seeking to make profits at the same time and in the same field, we hardly can fail to recognize that for this purpose, and as between them, it must be regarded as quasi property, irrespective of the rights of either as against the public.").
298. See, e.g., Nat'l Basketball Ass'n v. Motorola, Inc., 105 F.3d 841, 852-53 (2d Cir. 1997) (treating International News as establishing "hot-news" misappropriation claim).
299. Douglas C. Baird, Common Law Intellectual Property and the Legacy of International News Service v. Associated Press, 50 U. Chi. L. Rev. 411 (1983) [hereinafter Baird, Common Law] (describing development of misappropriation as form of common law intellectual property);
300. Frank H. Easterbrook, Intellectual Property Is Still Property, 13 Harv. J.L. & Pub. Pol'y 108 (1990) (linking intellectual property to traditional property);
301. Richard A. Epstein, International News Service v. Associated Press: Custom and Law as Sources of Property Rights in News, 78 Va. L. Rev. 85 (1992) [hereinafter Epstein, Custom and Law] (discussing particular circumstances of International News and general system of property rights surrounding it);
302. Justin Hughes, The Philosophy of Intellectual Property, 77 Geo. L.J. 287 (1988) (exploring philosophical justifications for granting property rights to ideas).
303. Nat'l Basketball Ass'n, 105 F.3d at 853, 855.
304. Mark A. Lemley, Beyond Preemption: The Law and Policy of Intellectual Property Licensing, 87 Calif. L. Rev. 111 (1999) (discussing ability of parties to contract over use of intellectual property while analyzing proposed change to Uniform Commercial Code);
305. Raymond T. Nimmer, Licensing in the Contemporary Information Economy, 8 Wash. U. J.L. & Pol'y 99 (2002) (analyzing licensing of information).
306. Robert Cooter & Thomas Ulen, Law and Economics 100 (1988) (noting "[o]ne well-confirmed result in the literature on bargaining is that bargainers are more likely to cooperate when their rights are clear," which explains "why property law favors criteria for determining ownership that are clear and simple").
307. Jason Scott Johnston, Bargaining Under Rules Versus Standards, 11 J.L. Econ. & Org. 256-257 (1995) (arguing, against conventional wisdom, that judicial ex post balancing test may result in more efficient bargaining than ex ante clearly defined rule, given existence of private information about value and harm).
308. Craig Allen Nard, Certainty, Fence Building, and the Useful Arts, 74 Ind. L.J. 759-60 (1999).
309. Henry E. Smith, Exclusion and Property Rules in the Law of Nuisance, 90 Va. L. Rev. 965-75 (2004) [hereinafter Smith, Law of Nuisance] ("Under an exclusion regime, the law uses a rough informational variable or signal-such as entry-to define the right, and thus bunches together a range of uses that juries, judges, and other officials need never measure directly." (emphasis omitted));
310. Henry E. Smith, Exclusion Versus Governance: Two Strategies for Delineating Property Rights, 31 J. Legal Stud. S454-55 (2002) [hereinafter Smith, Two Strategies] ("In exclusion, decisions about resource use are delegated to an owner who, as gatekeeper, is responsible for deciding on and monitoring specific activities with respect to the resource.");
311. Henry E. Smith, Property and Property Rules, 79 N.Y.U. L. Rev. 1755-56 (2004) [hereinafter Smith, Property Rules] ("In an exclusion strategy, the law sets up rough signals (informational variables, proxies) defining the boundaries of the asset. Within this zone of protection, owners have the choice of how to invest in or consume the asset." (emphasis omitted)).
312. H Smith, Law of Nuisance, supra note 52, at 973;
313. Henry E. Smith, Institutions and Indirectness in Intellectual Property, 157 U. Pa. L. Rev. 2083, 2120 (2009) ("The modular structure of exclusion-based intellectual property rights. makes. contracting more tractable.").
314. Kenneth J. Arrow, Economic Welfare and the Allocation of Resources for Invention, in The Rate and Direction of Inventive Activity 609-615 (Nat'l Bureau of Econ. Research ed., 1962) ("[T]here is a fundamental paradox in the determination of demand for information; its value for the purchaser is not known until he has the information, but then he has in effect acquired it without cost.").
315. Robert P. Merges, A Transactional View of Property Rights, 20 Berkeley Tech. L.J. 1477-1490, (2005) [hereinafter Merges, Transactional View]. For an application to trade secrets law.
316. Mark A. Lemley, The Surprising Virtues of Treating Trade Secrets as IP Rights, 61 Stan. L. Rev. 311-37 (2008).
317. Merges, Transactional View, supra note 55, at 1489-504.
318. Victoria Smith Ekstrand, News Piracy and the Hot News Doctrine 72 (2005) (citing Brief for Respondent at 10, Int'l News Serv. v. Associated Press, 248 U.S. 215 (1918) (No. 221)).
319. Singleton, supra note 19.
320. 608 F. Supp. 2d 454, 457 (S.D.N.Y. 2009); Complaint at 12-13, Associated Press v. All Headline News Corp., No. 08 Civ. 00323 (S.D.N.Y. Jan. 14, 2008).
321. Complaint at 1-2, 4-14, Associated Press v. Moreover Techs., Inc., No. 07 Civ. 8699 (S.D.N.Y. Oct. 9, 2007).
322. Id. at 11-12.
323. In the former action, the court ruled in favor of the plaintiff on its claims of hot news misappropriation and copyright infringement, and against the defendant's motion to dismiss. Associated Press, 608 F. Supp. 2d at 458-62. The AP has since asserted that the hot news doctrine that developed in such actions "was important to [its] efforts to protect its intellectual property." FTC Discussion Draft, supra note 24, at 10.
324. James Gibson, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L.J. 882-85 (2007).
325. See, e.g., id. at 887 (observing how uncertainty exacerbates this risk aversion).
326. This distinction is usually traced back to the work of Wesley Hohfeld. Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 Yale L.J. 710-19 (1917) [hereinafter Hohfeld, Fundamental Conceptions] (analyzing use of legal conceptions such as "in personam" and "in rem").
327. Thomas W. Merrill & Henry E. Smith, The Property/Contract Interface, 101 Colum. L. Rev. 773 (2001).
328. Hohfeld, Fundamental Conceptions, supra note 65, at 718;
329. Albert Kocourek, Rights in Rem, 68 U. Pa. L. Rev. 322 (1920).
330. Int'l News Serv. v. Associated Press, 248 U.S. 215, 236 (1918) ("[F]or this purpose, and as between them, it must be regarded as quasi property, irrespective of the rights of either as against the public.").
331. Id. at 239 ("The fault in the reasoning lies in applying as a test the right of the complainant as against the public, instead of considering the rights of complainant and defendant, competitors in business, as between themselves.").
332. For a similar claim alluding to this distinction, see Gordon, Restitutionary Impulse, supra note 34, at 211 (describing restitutionary interest as relational). that the idea of a relational interest as used by Gordon bears no connection to the well-known category made popular by tort scholar Leon Green.
333. Leon Green, Relational Interests, 29 Ill. L. Rev. 460 (1934) (developing an independent category of relational interests in the common law).
334. See Nat'l Basketball Ass'n v. Motorola, Inc., 105 F.3d 841, 852 (2d Cir. 1997) (framing competition as competitive product or service rather than competitive firm).
335. See U.S. Golf Ass'n v. St. Andrews Sys., Data-Max, Inc., 749 F.2d 1028, 1037-38 (3d Cir. 1984) (finding "absence of direct competition" dispositive in case).
336. See, e.g., Barclays Capital Inc. v. Theflyonthewall.com, 700 F. Supp. 2d 310, 336-39 (S.D.N.Y. 2010) (condemning Fly's actions as using Barclay's work as a substitute for its own by "systematically gathering and selling the [f]irms' [r]ecommendations to investors"); X17, Inc. v. Lavandeira, 563 F. Supp. 2d 1102, 1107-09 (C.D. Cal. 2007) (finding significant that defendant's activities will "remove X17's incentive to gather the photographs and threaten the continued existence of X17's business").
337. See supra notes 39-45 and accompanying text (discussing newspapers' efforts to use property right to enjoin free riders).
338. Shyamkrishna Balganesh, Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions, 31 Harv. J.L. & Pub. Pol'y 593-643 (2008) [hereinafter Balganesh, Right to Exclude] (describing origins of this distinction in equity and its implications for property doctrine).
339. See Green, supra note 69, at 461 (documenting this phenomenon among courts).
340. See, e.g., Associated Press v. KVOS, Inc., 80 F.2d 575, 582-83 (9th Cir. 1935) (granting preliminary injunctive relief); Triangle Publ'ns, Inc. v. New Eng. Newspaper Publ'g Co., 46 F. Supp. 198, 204 (D. Mass. 1942) (granting injunctive relief to plaintiff despite defendant's request for an exception); Dior v. Milton, 155 N.Y.S.2d 443, 463 (Sup. Ct. 1956) (denying motion to dismiss complaint and injunctive relief). But see U.S. Sporting Prods., Inc. v. Johnny Stewart Game Calls, Inc., 865 S.W.2d 214, 219 (Tex. App. 1993) (observing that injunctive relief was not only remedy available in hot news cases under Texas law).
341. The Federal Circuit had developed a similar "automatic injunction" rule for patent infringement, which the Supreme Court recently abrogated. See eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 393-94 (2006) (eliminating automatic injunction rule and requiring courts to use traditional four-factor test in deciding whether to grant injunctive relief).
342. Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089-93 (1972) (explaining why entitlements should receive property rule protection); see also Balganesh, Right to Exclude, supra note 74, at 649-57 (discussing remedial conception of property).
343. See Smith, Property Rules, supra note 52, at 1724 (discussing and critiquing this connection).
344. Shyamkrishna Balganesh, Debunking Blackstonian Copyright, 118 Yale L.J. 1126-1133 (2009) (describing property absolutism and essentialism). For criticism of unidimensional property thinking along these lines.
345. Hanoch Dagan, The Craft of Property, 91 Calif. L. Rev. 1517 (2003) (criticizing Court's opinion in United States v. Craft for doing this in relation to marital property);
346. Hanoch Dagan, Property and the Public Domain, 18 Yale J.L. & Human. 84 (2006) (applying this critique to intellectual property scholarship's relationship to property ideas and concepts).
347. Int'l News Serv. v. Associated Press, 248 U.S. 215, 267 (1918) (Brandeis, J., dissenting) ("Courts are ill-equipped to make the investigations which should precede a determination of the limitations which should be set upon any property right in news.").
348. Id. at 236 (majority opinion).
349. See, e.g., Newman v. Sathyavaglswaran, 287 F.3d 786, 797 (9th Cir. 2002) (noting that quasi-property nomenclature has "little meaningful legal significance");
350. Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 Yale L.J. 1-20 (2000) [hereinafter Merrill & Smith, Optimal Standardization] (criticizing doctrine of misappropriation for having "taken on a life of its own").
351. Gordon, Restitutionary Impulse, supra note 34, at 267 (arguing that Court may have borrowed the idea of quasi-property from quasi-contract);
352. Peter Birks, An Introduction to the Law of Restitution 29-39 (1985) [hereinafter Birks, Restitution] (explaining development of term "quasi-contract" and its connection to unjust enrichment in common law).
353. Schall v. Camors, 251 U.S. 239, 254 (1920) (Pitney, J.) (commenting that principle of "reaping without sowing" adds an element of unjust enrichment).
354. Callmann, What is Unfair?, supra note 35, at 606-07 n.56;
355. John P. Dawson, The Self-Serving Intermeddler, 87 Harv. L. Rev. 1409-17 (1974) (discussing International News in context of restitution law's rules against recovery by a self-serving intermeddler).
356. International News, U.S. at 240.
357. See Baird, Uneasy Legacy, supra note 9 (discussing International News and historical background to it).
358. International News, 248 U.S. at 235, 240.
359. See United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 97 (1918) ("The law of trade-marks is but a part of the broader law of unfair competition."); Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 259 (1917) (describing facts as meriting "an injunction to restrain... unfair competition"); G. & C. Merriam Co. v. Saalfield & Ogilvie, 241 U.S. 22, 24 (1916) (noting that case involves "unfair competition in the business of publishing and selling dictionaries"); Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 413 (1916) (observing how common law of trademarks was part of broader area of unfair competition); Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 256 (1916) (describing case as "one of unfair competition without trade-mark infringement").
360. See 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.11 (2010) (providing overview of protection for factual works such as news).
361. See Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1371-72 (5th Cir. 1981) (denying copyright protection to factual content of news stories).
362. Though ironically, a vastly greater percentage of their advertising revenue comes from the non-news parts of newspapers, which they use to cross-subsidize news collection. The more targeted forms of advertising that these other, special interest sections allow for explains this reality.
363. Hal Varian, Newspaper Economics: Online and Offline, Google Public Policy Blog (Mar. 9, 2010, 9:00 AM), at http://googlepublicpolicy.blogspot.com/2010/03/newspaper-economics-online-and-offline.html (on file with the Columbia Law Review) (noting most advertising revenue for newspapers comes primarily from "special interest sections" rather than from news).
364. For an excellent overview of the idea of time value in newsgathering and its emergence as a major source of competition among newspapers in the nineteenth century, Menahem Blondheim, News over the Wires: The Telegraph and the Flow of Public Information in America, 1844-1897, at 11-29 (1994).
365. Borrowing a phrase from Richard Epstein, this may be characterized as the "externality of. ignorance." Epstein, Custom and Law, supra note 47, at 113.
366. Int'l News Serv. v. Associated Press, 248 U.S. 215, 250 (1918) (Brandeis, J., dissenting) ("The general rule of law is, that the noblest of human productions- knowledge, truths ascertained, conceptions, and ideas-become, after voluntary communication to others, free as the air to common use.") Note
367. Id. at 230 (majority opinion) (noting that value of news "depends upon the promptness of transmission").
368. Id. at 235.
369. Id. at 240 (emphasis added).
370. See infra Part II.A.2.a.
371. See infra Part II.A.2.b.
372. See infra Part II.A.2.c.
373. See infra Part II.A.2.d.
374. For a discussion of this phenomenon, converting a prisoner's dilemma situation into a coordination game in other contexts, Dennis Chong, Collective Action and the Civil Rights Movement 103-07 (1991);
375. Jon Elster, Ulysses and the Sirens: Studies in Rationality and Irrationality 146 (1979);
376. Daniel H. Cole & Peter Z. Grossman, Institutions Matter! Why the Herder Problem Is Not a Prisoner's Dilemma, 69 Theory & Decision 219 (2008);
377. Barry R. Weingast, The Political Foundations of Democracy and the Rule of Law, 91 Am. Pol. Sci. Rev. 245-249 (1997).
378. For an excellent overview of how these developments occurred very shortly after the emergence of newsgathering as a commercial activity, see Victor Rosewater, History of Coöperative News-Gathering in the United States 14-20 (1930) ("[T]he Courier and Enquirer [were] bent on exposing those appropriating its news without credit....").
379. Id. at 18-19.
380. Isaac Clarke Pray, Memoirs of James Gordon Bennett and His Times 135 (1855).
381. Pray describes this incident as follows: The Courier and Enquirer a few days after the announcement of the fall of Warsaw, in the Polish War, in order to expose those who were guilty of appropriating news without credit, prepared a denial of the original account, and printed a small edition, prepared expressly to reach the offices of the morning journals [i.e., the free riders]. The statement purported to be gleaned from papers brought by the ship Ajax. There was no such arrival. The article was copied by several papers, and [one free riding local newspaper] sent it forth in the country edition as news which had been obtained originally by its own enterprise.... Other papers announced the news without giving any credit to the source of it. The hoax created much excitement among journalists; and the public, or that small portion of society, to which newspapers were familiar, enjoyed the joke.
382. Id. For an additional account of this event, Frederic Hudson, Journalism in the United States, from 1690-1872, at 347 (New York, Harper Bros. 1873).
383. See, e.g., Epstein, Custom and Law, supra note 47, at 97 (describing misappropriation as having affirmed industry norm against free riding).
384. Rosewater, supra note 105, at 14-20 (discussing cooperation in gathering "ship news in advance of docking");
385. Richard A. Schwarzlose, Cooperative News Gathering, in American Journalism: History, Principles, Practices 153-62 (W. David Sloan & Lisa Mullikin Parcell eds., 2002) (examining typical forms of cooperative newsgathering).
386. For a comprehensive history of this development, see generally id. (detailing cooperative newsgathering from its beginnings through rise of the AP). In discussing conditions in the industry around the early nineteenth century, Rosewater noted: "Because of the relative costliness of newsgathering and the extravagance of duplication, it was equally inevitable that this should lead to the initial steps for a union of effort." Rosewater, supra note 105, at 11.
387. Rosewater, supra note 105, at 19-20.
388. Associated Press v. Int'l News Serv., 245 F. 244, 245 (2d. Cir. 1917).
389. Int'l News Serv. v. Associated Press, 248 U.S. 215, 221 (1918).
390. Melville Stone notes that early in his tenure at the Chicago Daily News, he would lay traps to catch and expose such free riding. On one such occasion, he recalls that a competitor engaging in such free riding was "laughed to death" on exposure, and that within two years of the hoax/trap, it went out of business. Stone, supra note 40, at 63-64. Stone also notes that in due course, such traps and hoaxes, while amusing to the public, came to have little deterrent effect. Id. at 355. For a discussion of how the INS, too, was the target of such a hoax.
391. Baird, Uneasy Legacy, supra note 9, at 27 & n.44.
392. Stone, supra note 40, at 355 (describing practices of the Chicago Courier and American Press Association).
393. Recently, Wendy Gordon has argued that the Court in International News may have been sensitive to this concern.
394. Wendy J. Gordon, Harmless Use: Gleaning from Fields of Copyrighted Works, 77 Fordham L. Rev. 2411-2423 (2009) (observing how Court in International News may have been motivated by desire to avoid harm to "each organization's internal structure" and by "thought that if it refused to enjoin the defendant's copying, no entity could collect enough fees from the small newspapers to afford to send out national and overseas correspondents").
395. See Baird, Uneasy Legacy, supra note 9, at 24 ("AP routinely monitored the bulletins of other wire services and used them as a starting point for its own stories.").
396. Id. at 25.
397. Id. at 27;
398. Oliver Carlson & Ernest Sutherland Bates, Hearst: Lord of San Simeon 54-55 (1936) (observing how William Hearst, owner of INS, had effectively invented the process of creating news to report it).
399. See Epstein, Custom and Law, supra note 47, at 102 (noting that "using tips across the board allows all the papers to lower their cost of collecting information, without destroying the initial incentive to produce information in the first place" provided that "there is independent investigation of the tip" and "information printed in the story is obtained through that investigation").
400. Associated Press v. Int'l News Serv., 240 F. 983, 991 (S.D.N.Y. 1917) (A. Hand, J.).
401. See id. ("In many cases the verification with modern telephonic communication would be so rapid that the time required for it would in no sense protect the original gatherer of the news.").
402. Id.
403. Associated Press v. Int'l News Serv., 245 F. 244, 247-48 (2d Cir. 1917).
404. Id. at 247-253.
405. Baird, Uneasy Legacy, supra note 9, at 27.
406. See Epstein, Custom and Law, supra note 47, at 113-14 ("Pitney describes the defendant's interest in its news as 'quasi property,' which is good only for a short period of time (less than a day) and then only against the direct competitor of the plaintiff....").
407. Int'l News Serv. v. Associated Press, 248 U.S. 215, 231 (1918).