Vol 7 No 1 - Roger Williams University School of Law

protect their investments. Ironically, the common-law concept of“hot news” misappropriation traces its roots to another seminalUnited States Supreme Court case, International News Service v.Associated Press,34 decided some seventy years prior to Feist. TheInternational News case is a relic from an earlier era in whichfederal courts created their own “federal common law” forapplication in diversity of citizenship cases. The Court’s reasoningin International News is reminiscent of the colorful New YorkSupreme Court quotation appearing at the outset of this article,denouncing the “atrocious doctrine . . . [that would] hold thatdispatches, the result of the diligence and expenditure of one man,could with impunity be pilfered and published by another.”35 InInternational News, the Court held that a news service had a“quasi-property” interest in the news that it had gone to theexpense of collecting,36 and could thus prevent, on a theory ofunfair competition, a rival news service from appropriating thatnews for a competitive purpose even after the news had becomepublic.37Although International News, as a part of the federal commonlaw, was effectively overruled by the Supreme Court’s laterdecision in Erie Railroad Co. v. Tompkins,38 which held thatfederal courts are to apply state common law in diversity cases,39its underlying principles have survived in state case law, andindeed, have been applied even in the absence of any competitionbetween the parties, thus coming perilously close to creating defacto (or quasi-) property rights in data.40 In Feist itself, the34. 248 U.S. 215 (1918); see also Bd. of Trade v. Christie Grain & Stock Co., 198U.S. 236 (1905).35. Kiernan, 50 How. Pr. at 194.36. Int’l News, 248 U.S. at 236. It is important to note, however, that the Court’scharacterization of the news as “quasi property” was primarily designed to sustain theCourt’s equity jurisdiction over the controversy, as a court of equity generally “concernsitself only in the protection of property rights,” but “treats any civil right of a pecuniarynature as a property right.” Id. (citations omitted).37. Id.38. 304 U.S. 64 (1938).39. Id. at 78-80. Pockets of federal common law may nevertheless remain, yet are“few and restricted.” See Atherton v. FDIC, 519 U.S. 213, 218 (1997) (citing O’Melveny& Myers v. FDIC, 512 U.S. 79, 87 (1994) (quoting Wheeldin v. Wheeler, 373 U.S. 647,651 (1963))).40. See, e.g., Bd. of Trade of the City of Chicago v. Dow Jones & Co., 456 N.E. 2d84 (Ill. 1983) (holding that offering a commodity futures contract based on the DowJones Industrial Average without the consent of Dow Jones & Co. wouldmisappropriate a valuable business asset of Dow Jones & Co., even though the latter