How to Destroy Blogging With One Easy Law

Two lawyers named Bruce (what are the odds?) had an op-ed in the Washington Post over the weekend that tossed out a bunch of legislative ideas for protecting journalism. Some of the ideas -- antitrust exemptions, tax benefits, easing ownership restrictions and so on -- have been trotted around the showroom plenty of times before and aren't going to turn any heads. And some -- changing the laws governing how search engines can index pages -- involve technical issues that aren't really up my alley. But I thought this suggestion, in particular, would do a fine job of carpet bombing the current internet-media landscape:


Federalize the "hot news" doctrine. This doctrine protects against types of poaching that copyright might not cover -- the stealing of information not by direct copying but simply by taking the guts of the content. While the Internet has made news vulnerable to pilfering because of the ease of linking from one site to the next, the hot-news doctrine has limited use because it is only recognized in a few states.

A spent some time reading about the doctrine (summaries by real-life lawyers here and here) and my understanding is this would be a pretty drastic expansion of current copyright protections. As it stands, the law treats literary and journalistic output as having two parts: an expressive portion (which is protected by copyright) and a factual portion (which is not). If the Washington Post gets a scoop about some smarmy politician's affair, the New York Times can still summarize the same news. It can't copy-paste the same text (sorry Maureen) but the facts are fair game.

But expanding the hot news doctrine would expand some copyright protections for the factual content. It would give news providers a temporary monopoly -- "a quasi property right" -- over their scoops. I'm not really in a position to judge the case law (though I thought Eugene Volokh's two-paragraph takedown was mostly convincing), but temporary factual monopolies would certainly put the kibosh on the a lot of what bloggers do.

Pakistan is expanding its nuclear arsenal. See?


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Conor Clarke is the editor, with Michael Kinsley, of Creative Capitalism. He was previously a fellow at The Atlantic and an editor at The Guardian. More

Conor Clarke is the editor, with Michael Kinsley, of Creative Capitalism, an economics blog that was recently published in book form by Simon and Schuster. He was previously a fellow at The Atlantic and an editor at The Guardian. He is also on Twitter.

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