In the last few years, there's been a push by some companies to bring back the immensely troubling "hot news doctrine," that appears to violate everything we know about the First Amendment and copyright law. Basically, the "hot news doctrine" says that if someone reports on a story, others are not allowed to report on their reporting for some period of time -- on the theory that it somehow undermines the incentive to do that original reporting. Last year, we wrote about the very troubling implications of allowing the hot news concept to stand. Beyond the free speech implications, it also has the troubling quality of effectively creating a copyright on facts -- which are quite clearly not covered by copyright. On top of that, it's not necessary in the slightest. As anyone who is actually in the online news business knows, getting a scoop gets you traffic -- even if others report the same thing minutes later. Being first gets you the attention. You don't need to artificially block others from reporting the news.

Unfortunately, with various publications struggling, some have picked up on the hot news doctrine as a way to somehow block competition. Tragically, it looks like a court has now adopted the hot news doctrine in one case. Paul Alan Levy alerts us to the news that a judge issuing an injunction against TheFlyOnTheWall.com, a website that would publish summaries of Wall Street research. The Wall Street firms said this undermined their business model -- and the court agreed. It passed an injunction saying that TheFlyOnTheWall had to hold off publishing any news about any Wall Street research report until either 10am (if the report is released early in the morning) or for two hours after it's released if it comes out during the day.

These totally arbitrary restrictions are highly troubling from a free speech standpoint and seem effectively random. This seems like yet another case of a company being upset by interference with its business model, which should be a reason to change the business model -- not run to the courts.

But what's most troubling of all is that now all the publishers who have been salivating over the hot news doctrine have a legal ruling to point to. Can you imagine how the world would work if you couldn't blog about or mention a particular piece of news for a few hours because the Associated Press got to it first? It's hard to see how this could possibly stand up to a First Amendment analysis, and it's quite troubling that the judge found the way she did.

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The more of ACTA that leaks, the worse it seems. KEI has the details on another portion of ACTA that had not leaked yet, which focuses on setting up new institutions that would manage ACTA after it was implemented. Basically, it would be an ongoing organization tasked with continuing to update ACTA's rules -- sort of a parallel organization to WIPO, which already exists, but which has recently committed the mortal sin of actually listening to consumer rights groups. The scary part is that this group would be allowed to amend ACTA provisions on the fly. And, while this new organization can "extend invitations" to governments, it's still being debated what non-governmental organizations will be able to take part. KEI notes that the "USTR has told members of Congress it is their intention to marginalize the participation by consumer interest organizations in the new forum," though does not provide a citation for this point.

Either way, it seems like the goal here is to create an extra-governmental body that effectively controls copyright law around the globe, with little input from the actual governments or the people they represent. And, of course, if the folks involved in ACTA negotiations are any indication of who will be involved in this group, you can assume that they will be strong supporters of the viewpoint of the legacy industries: that intellectual property law is designed solely to protect those industry's business models, and not to promote the wider progress of culture and the economy.

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The secret Anti-Counterfeiting Trade Agreement has leaked again. Michael Geist has analysis below: New ACTA leaks have emerged this week that fill in the blanks about the remainder of the still-secret treaty. While earlier leaks provided extensive detail on the Internet and civil enforcement chapters, these latest leaks shed new light into the criminal enforcement section, the chapter on ACTA institutional issues, and international cooperation. The international cooperation chapter includes extensive provisions on capacity building and technical assistance. This is noteworthy since it (1) confirms the vision that developing countries will ultimately be pressured to join ACTA and (2) represents a counter to the developing country focus at WIPO. While WIPO has typically provided this assistance, the emergence of the development agenda has promoted a more balanced approach to technical assistance in developing countries. ACTA seeks to return technical assistance to an enforcement oriented approach. Translation for non-wonks: Historically, developing countries have asked the UN's World Intellectual Property Organization for "technical assistance" with their copyright laws. This has usually amounted to "Create copyright laws that will make it easier for rich countries to get richer," but in the past several of years, WIPO has found itself with a large cadre of public interest activists and now, WIPO is working on a treaty on its "Development Agenda" to figure out a copyright system that serves humanitarian goals, too (for example, by making it legal for archivists and educators to work together to translated and adapt works that have different copyright rules in different countries). We've all known that ACTA is a way of writing copyright treaties without having to let poor countries and human rights advocates into the room. We've suspected that poor countries -- who aren't invited to the negotiations -- will be strong-armed into signing onto the treate afterwards. This leak confirms our worst fears: ACTA throws out the pretence of justice, fairness, and humanitarianism present at the UN, for pure, naked, crony-capitalism. It's an instrument for allowing entrenched corporations from rich countries change the laws of other countries to their benefit -- and to the detriment of the people of those countries. It's a hijacking of the world's legislative systems by private interests, abetted by the US Trade Rep. New ACTA Leaks: Criminal Enforcement, Institutional Issues, and International Cooperation (Thanks, Michael!) Previously:Biggest-ever ACTA leak: secret copyright treaty dirty laundry ... ACTA leak: Now we know who is against transparency - USA, Korea ... EU Parliament votes 663-13 against ACTA's enforcement measures ... Danish activists demand to know why their governments block ACTA ......

Michael Scott points us to a rather surprising (given the source) piece in Ad Age asking if copyright is "the buggy whip of the digital age." Of course, most regular Techdirt readers will not be surprised to find that I agree with that statement wholeheartedly. It's a tool for a very different system that isn't needed. If anything, I'd argue the situation is worse than with buggy whips. At least with buggy whips, they could just fade away as the automobile grew in importance. Buggy whips couldn't get in the way of the automakers. Copyright, on the other hand, is regularly used to stifle and hold back new forms of creativity and to silence expression.

The article itself, by Judy Shapiro, is really a conference report from an event called "The Collision of Ideas 2010," put on by the Copyright Clearance Center. It looks like they brought in a lot of fantastic speakers, highlighting how copyright law doesn't fit well with what content creators are trying to do, and how it's often being used to actively harm content creators. For example: Mr. Hoffman, the filmmaker, gave a presentation where he confided how challenging current copyright laws are for artists. As an example, he gave us detailed insights into the challenges he had creating his critically acclaimed Sputnik documentary. He explained that half his budget was spent on copyright fees alone. Most unfairly, he had to pay exorbitant copyright fees to a network for old news footage they did not even have but which David himself had spent time to ferret out. David openly concluded that, "it was better to open the floodgates" and let anyone use his content than constrain its distribution. Unfortunately, Shapiro is getting beaten up in the comments on that piece by folks who are doing the kneejerk thing of saying "but copyright is good, because otherwise who will create!" Still, it's good to see that this debate is reaching a wider and wider audience through conferences like this one and in the pages of AdAge. While you can always expect the kneejerk response from folks who have always been told that copyright must be good, the more people examine the actual issues, the more they'll recognize that as a tool, it's current design is woefully misguided and very much against the principles for which it was created.

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