The Cold Reality of the Ineffective Hot News Remedy, and the Case for Contract
By: Gregory D. Beaton
The hot news misappropriation doctrine permits a plaintiff to seek time-limited injunctive relief against an alleged misappropriator in order to promote the reporting and dissemination of noncopyrightable information. While the hot news remedy may be a powerful tool in theory, it has proven to be elusive in practice, as courts struggle mightily to determine the optimal length of injunctive relief on the rare occasions that they actually try. A review of nearly a century’s worth of case law suggests that it may not be the doctrine’s failure leading to nonapplication of the remedy, but rather the remedy’s failure leading to nonapplication of the doctrine. Still, all hope should not be lost for the protection of hot news. In the absence of judicial clarification or legislative action, parties that gather and produce noncopyrightable information can protect their investments by establishing contractual relationships with those who consume their products. If misappropriation occurs, contractual rights help to broaden the scope of claims that can survive federal copyright preemption and aid in defining the scope of relief for aggrieved parties. By adopting a hybrid hot news misappropriation and contractual ap- proach, parties that disseminate noncopyrightable information can largely avoid the uncertainty of ex post judicial determination of a remedy, revitalizing a doctrine that can have a profound impact on protect- ing their investments.
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