Property, Natural Monopoly, and the Uneasy Legacy of INS v. AP

Abstract:     
International News Service v. Associated Press held that a wire service had the right to prevent rivals from copying its bulletin. It established the doctrine of misappropriation and justified it on the ground that someone that invests in gathering and disseminating information is entitled to the fruits of its labor. The Supreme Court, however, missed the strong anti-competitive undercurrents in the case. INS and AP were not conventional rivals. The most important AP member (and the person who stood to gain the most from AP's anticompetitive activities) - also owned INS. Far from being about first principles, the case illustrates how common-law reasoning quickly loses its moorings in the absence of a bona fide dispute. The long-recognized failing of the case - that it sets out a principle with no obvious boundaries - was deeply embedded in the facts and illustrates, even in this iconic environment, that the domains of intellectual property and antitrust cannot be easily separated.

Portions of this paper are adapted from a chapter to be published in JANE C. GINSBURG AND ROCHELLE C. DREYFUSS, INTELLECTUAL PROPERTY STORIES (forthcoming, Foundation Press, 2005).

Keywords: Misappropriation, network, wire service, intellectual property

Working Paper Series