Rabicoff, Lindsay G.
October 2012
Jurimetrics: The Journal of Law, Science & Technology;Fall2012, Vol. 53 Issue 1, p71
Academic Journal
In an increasingly connected world, copying information and disseminating it has never been easier. Unfortunately, this rise in technology and connectivity has also led to an increased taking -- without permission or attribution -- from compilers of factual content and creators of uncopyrightable works. Currently, where the factual content is not copyright protected, the available remedy to the victims of such free riding is the state law hot news misappropriation doctrine. Regardless of the availability of the remedy, courts in recent cases have struggled to adapt this doctrine appropriately to apply to the situations created by the Internet age. Although some scholars argue that federal copyright law preempts the hot news misappropriation doctrine, even if it survives preemption it is still an inappropriate remedy in modern society. Simply put, the hot news misappropriation doctrine is failing to work in today's technological world. The confusion surrounding the hot news misappropriation doctrine indicates that the courts' current solution addressing free riding concerns is ineffective. The doctrine fails because it is vague and can be interpreted to both over-and underprotect information, depending on the context. Legislative action is needed to protect uncopyrightable information that (1) is an essential feature of a plaintiff's business, (2) provides a benefit to society, and (3) is unlikely to be generated without an incentive of protection for an appropriate time to allow the creator of the work to recover his costs.


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