A Property Right in News: Legal reasoning in INS v. AP - OIPRC Seminar Series

International News Service v. Associated Press 248 U.S. 215 (1918) is one of the most intellectually intriguing Supreme Court rulings in the field of IP law. Famously, the majority opinion delivered by Justice Mahlon Pitney held that a joint venture of newspapers designed to rationalize the cost of gathering and distributing news stories to its members could obtain injunctions against non-members to enjoin them from utilizing the same information even if no copyright infringement had taken place and the defendants’ acts involved neither fraud nor force. Justice Pitney’s opinion has been lambasted by judges and commentators for an obscure legal reasoning that invoked various private law concepts without a clear ratio decidendi and an attempt to establish an overly broad doctrine against the appropriation of valuable intangibles that was eventually encapsulated in an unsuccessful agrarian metaphor. But is that really so? INS v. AP raises the broader question of whether and to what extent judges should have authority to recognize property rights in intangible business values that have not been included into the statutory scheme for protecting intellectual property.