International News Service v. Associated Press
The Supreme Court ruled that a competing news service could be stopped from copying the Associated Press's published news bulletins and reselling them to its own client newspapers, holding that this kind of copying between business rivals amounted to unfair competition.
The decision recognized that while news itself belongs to no one once published to the world at large, as between two competing news agencies it counts as a kind of property that cannot be freely taken and resold by a rival that spent nothing to gather it.
How it got here: The district court partly enjoined INS but declined to bar bodily copying of AP's news; the Second Circuit broadened the injunction, and the Supreme Court granted certiorari.
The Case in Depth
What happened
The Associated Press was a nonprofit cooperative of about 950 newspapers that jointly gathered and shared news. International News Service was a for-profit rival serving about 400 papers. INS was accused of bribing AP members' employees, inducing violations of AP's rules, and, most significantly, copying news straight from AP's bulletin boards and early newspaper editions and selling it to INS's own client papers, sometimes even before AP's own member papers could benefit from it.
The question before the Court
Could a rival news agency lawfully take stories already published by the Associated Press and resell them to its own client newspapers without paying to gather them?
Why it matters
The ruling let the Associated Press stop a direct competitor from lifting its freshly gathered news off bulletin boards and out of early editions and reselling it to other papers. It gave news organizations a legal tool against rivals who free-ride on their reporting costs, shaping how the news business and, later, other fast-moving information industries could protect their work from being copied in real time.
What changes now
This was a final ruling on the underlying legal question, even though the case had only reached the preliminary-injunction stage below. The injunction against INS's bodily copying of AP's news stands, but the Supreme Court left it to the district court to refine the injunction's specific terms, such as how long and over what area republication should be restricted after AP's original publication. The broader question of a general property right in news was left unresolved.
What this does not decide
The Court expressly did not decide whether there is a general property right in news against the public at large, and it left AP's competitors free to gather and publish their own independently verified news, including using AP's reports merely as investigative "tips." The ruling reaches only bodily copying between direct commercial rivals.
Concurrences and dissents
Concurrence — Justice Holmes
Justice Holmes rejected any property right in news or in the words used to report it. He argued the real wrong was a kind of implied misrepresentation: by presenting the news as its own, INS falsely implied it had gathered the facts through its own effort and expense. He would have limited relief to requiring INS to credit the Associated Press as the source for some set number of hours after publication, rather than banning the copying itself.
Dissent — Justice Brandeis
“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.”Brandeis's core objection that published facts and ideas should be free for anyone to use.
Justice Brandeis argued that news, once published without any breach of contract or trust, becomes free for anyone to use, just like any other publicly disclosed fact or idea. He found no basis in existing law for treating INS's conduct as unlawful, since INS obtained the news lawfully and made no false representations. He argued that creating a new property right in news raised difficult public-interest questions about regulation and access that courts were ill-equipped to resolve, and that this task belonged to a legislature, not judges.
How the Court got there
The legal reasoning, step by step
- The Court separated news into two parts: the underlying facts about events, which are common history belonging to no one, and the particular words used to report them, which can be copyrighted as a literary production; it held the facts themselves are not protected by copyright law.
- Because the case turned on unfair competition rather than a general property right, the Court asked not whether AP owned the news against the whole world, but whether AP and INS, as direct business rivals, owed each other a duty not to unfairly damage one another's business.
- The Court reasoned that between competitors, news gathered at real cost and sold for profit functions as 'quasi property' — not property against the public, but treated as such between the two rival gatherers competing to sell the same material.
- Applying that principle, the Court found that INS's practice of taking AP's bulletins and early editions and reselling them let INS profit from AP's costly reporting work without bearing any of the expense, undercutting AP's ability to recoup its investment.
- The Court distinguished this bodily copying from the accepted practice of using a rival's report merely as a 'tip' to be independently verified through one's own investigation, holding that only the former, not the latter, was unfair competition.
- Concluding that INS's bodily appropriation crossed the line into unfair competition, the Court held that equity could restrain it even though INS's practice did not involve any false claim that the material was its own.
Doctrinal impact
Cases affected by this decision
Reaffirms Board of Trade v. Christie Grain & Stock Co. (198 U.S. 236)
Relies on this earlier ruling that collected price quotations could be protected like a trade secret against those who improperly obtained them.
Reaffirms Hitchman Coal & Coke Co. v. Mitchell (245 U.S. 229)
Relies on this case for the general duty of competitors not to unnecessarily or unfairly injure each other's business.