AP Gets It Right and Then Overreaches–AP v. AHN

Faced with an allegedly cut-and-dried case of someone systematically copying and reusing its news articles, the Associated Press brought what should have been an easy copyright suit. Unfortunately, it also tried to lever these sympathetic facts to stretch the scope of the DMCA’s CMI-stripping provisions and revive the dead dog legal doctrine of ‘hot news misappropriation.’

By Ethan Ackerman

The Associated Press generates a very large number of copyrighted works. This means it is often involved in legal tussles surrounding copyright law. Last year my post on this blog covered an incident where the AP took a very debatable stance over whether news headlines were copyrightable, and many other blogs have covered a more recent case where the AP has asserted copyright infringement over a news photo it may not even own the copyright to. So when the AP filed suit against competitor All Headline News, it was refreshing to see the AP asserting plausible copyright infringement claims.

Unfortunately, the AP levered the facts of this case to breath some life into the moribund ‘hot news misappropriation’ doctrine, and even secured an unfortunate opinion on one of the rarer provisions of the DMCA – section 1202’s copyright management information provision. In February of this year, in the Southern District of New York, Federal District Court Judge Castel denied AHN’s motions to dismiss on these two claims, and granted dismissal on some related trademark-stripping claims. Eric Goldman’s earlier post on the opinion covered all these legal issues in thorough detail. Denying AHN’s motion to dismiss doesn’t carry the same weight as a final opinion endorsing the AP’s legal theories, but it was a court ruling nonetheless, and a clear win for the AP.

Now, AHN has sensibly settled. (For a bit of journalistic humor, read AHN’s own, slimmer coverage of the settlement here.)

The settlement is notable for two things: money changed hands and AHN is subject to an injunction. As far as the settlement’s impacts on the validity of AP’s legal theories, well… settlements don’t validate legal theories, court opinions do. That said, part of the settlement required AHN to pseudo-admit the viability of the hot news misappropriation doctrine.

The excellent bloggers at the Citizen Media Law Project have gone over the narrowness of the ‘hot news misappropriation’ doctrine before, and the Copyright Litigation Blog also takes some time focusing on choice of law issues, important since the doctrine’s viability is strongest in the 2nd Circuit. In this post however, I wanted to highlight an under-discussed issue – 17 USC 1202. 1202 is the provision of the DMCA prohibiting removal or modification of Copyright Management Information, or CMI.

At issue is the scope of section 1202’s prohibition on removing CMI. Does 1202 apply only to digital or metadata-like CMI, or does it extend to analog information on tangible goods like newspaper bylines, book flyleaves and painting signatures as well? When section 1202 was enacted, as part of the Digital Millenium Copyright Act, clearly the former were contemplated, but the plain words of the statute could include the latter as well. David Johnson artfully details the split in cases that have developed over the scope, so I’ll just point to his post. Interestingly enough, David’s post suggests that the AP earlier found itself on the other end of byline-stripping accusations, and was presumably arguing for a narrower reading of section 1202. Eric Goldman’s earlier comments on the 1202 issue pointed out a potential copyright/TM catch-22 as well.

Finally, Fred von Lohmann at the EFF has an excellent post on a strategic reason why 1202 claims are often made – potentially big statutory damages, much larger than infringement damages, may incent settlement. Fred also spends some time on the weaknesses in expanding 1202 beyond digital CMI to tangible examples.