On February 17th, in Associated Press v. All Headline News Corp., the U.S. District Court for the Southern District of New York denied defendants motion to dismiss several of AP’s claims, most significantly AP’s claim that defendant AHN was liable for “hot news” misappropriation and for violating the copyright management information protections provided under Section 1202 of the Digital Millennium Copyright Act (DMCA).  For those who have been living in a cave and are not familiar with the Associated Press (AP) -- it's an organization that --  through its employees, affiliates and subsidiaries --  engages in significant effort and expense to get access to news and to gather, report, package and transmit news stories throughout the world.  As stated in the court decision, All Headline News (AHN) scours the Internet for news stories and then either copies them or rewrites them for publication under the AHN banner.  Even though the stories are original AP content, AHN markets them as their own by, among other things, removing or altering the identification of the AP as author or copyright holder of the articles.  AP sued AHN for these activities and AHN moved to dismiss all the AP claims except the copyright infringement claim.  Although AHN prevailed in getting the trademark infringement and the Federal (but not state) unfair competition claims dismissed, the court refused to dismiss:  (1) AP’s claims of hot news misappropriation – holding that “[a] cause of action for misappropriation of hot news remains viable under New York law, and the Second Circuit has unambiguously held that it is not preempted by federal law;” and (2) AP’s claim that AHN violated Section 1202 of the DMCA by removing and/or altering copyright-management information – holding that there is no support for AHN’s position that this prohibition is limited to “the technological measures of automated systems” because no such requirement appears in the statute.

AHN is not the only entity that is trying to make a buc by "reprocessing" (my pc way of saying "stealing") copyrighted articles written by others and passing them off as their own on their website, but they may very well be one of the first entities to pay the price for their actions.  Any entity engaged in such illicit activities needs to understand that stealing the results of the hard work and energy of another may open themselves up not only to a copyright infringement lawsuit, but also to a suit for hot news misappropriation.  The misappropriation claim has been around since 1918 when the Supreme Court handed down its decision in International News Service v. Associated Press.   While the claim has been somewhat comotose over in the past few decades it is experiencing a revitalization of sorts as more people think they can make a cheap buc by reaping what they have not sewn.  Don't be surprised if you see this legal theory popping up in more and more cases as a means of combatting the most eggregious case of digital content piracy.