Hot News: Technology Trumps Law

[Commentary] For the past century, the imperial power of the law seemed unstoppable, as legislation and litigation reached into every area of life. But now the law has met its match.

Technology raises issues so quickly and unpredictably that judges are reduced to King Canutes, trying to stop the flow of ocean tides with their bare hands. Consider two similar cases based on rapid changes in technology occurring a century apart. Both dealt with "hot news," a legal doctrine that determines who owns news for how long. Long dormant, the issue has heated up as services such as Google and aggregators such as Huffington Post drew large audiences through summaries of original reporting by news organizations.

These cases were hard calls for judges in 1918 and again in the case decided last week. There can't be laws against using technology to spread news. Justice Louis Brandeis wrote as much in his 1918 dissent in International News Service. "With the increasing complexity of society, the public interest tends to become omnipresent, and the problems presented by new demands for justice cease to be simple. Then the creation or recognition by courts of a new private right may work serious injury to the general public unless the boundaries of the right are definitely established and widely guarded." But just because the law can't control how news spreads does not make technology a pure good. Google and Twitter filed a brief in Theflyonthewall, warning: "Hot news becomes cold in a nanosecond in the modern world." They don't want restriction on their business practices. But as in the cases of the not-so-innocent Hearst newswire and Theflyonthewall.com, Internet aggregators profit from the work of others as they undermine their business models. Judges are right to stand aside to let the tide of technology flow freely. It's only through more innovation, unfettered by new legal constraints, that technology will deliver new ways to fund original reporting, whether by journalists or equity analysts.