Outside the Beltway

AP Wins Case Limiting Fair Use

AP has won round 1 in a case against Meltwater that would severely limit the Fair Use concept in commercial cases.

James Joyner · Sunday, March 24, 2013 · 5 comments

AP has won round 1 in a case against Meltwater that would severely limit the Fair Use concept in commercial cases.

paidContent (“AP wins big: Why a court said clipping content is not fair use“):

A federal court has sided with the Associated Press and the New York Times in a closely-watched case involving a company that scraped news content from the internet without paying for it.

[…]

The defendant in the case is Norway-based Meltwater, a service that monitors the internet for news about its clients. Its clients, which include companies and governments, pay thousands of dollars a year to receive news alerts and to search Meltwater’s database.

Meltwater sends its alerts to client in the form of newsletters than include stories from AP and other sources. Meltwater’s reports include headlines, the first part of the story known as the “lede,” and the sentence in the story in which a relevant keyword first appears. The Associated Press demanded Meltwater buy a license to distribute the story excerpts and, when the service refused, the AP sued it for copyright infringement.

Meltwater responded by saying it can use the stories under copyright’s “fair use” rules, which creates an exception for certain activities. Specifically, Meltwater said its activities are akin to a search engine — in the same way that it’s fair use for Google to show headlines and snippets of text in its search results, Meltwater said it’s fair use to clip and display news stories.

[…]

To decide if something is fair use, courts apply a four-part test that turns in large part on whether the defendant is using the copyrighted work for something new or unrelated to its original purpose. Famous examples of fair use include a parody rap song of “Pretty Woman” and Google’s display of thumb-size pictures in its image search. In the AP case, however, Meltwater’s fair use defense failed.

Judge Cote rejected the fair use claim in large part because she didn’t buy Meltwater’s claim that it’s a “search engine” that makes transformative use of the AP’s content. Instead, Cote concluded that Meltwater is more like a business rival to AP: “Instead of driving subscribers to third-party websites, Meltwater News acts as a substitute for news sites operated or licensed by AP.”

Cote’s rejection of Meltwater’s search engine argument was based in part on the “click-through” rate of its stories. Whereas Google News users clicked through to 56 percent of excerpted stories, the equivalent rate for Meltwater was 0.08 percent, according to figures cited in the judgement. Cote’s point was that Meltwater’s service doesn’t provide people with a means to discover the AP’s stories (like a search engine) — but instead is a way to replace them.

Now, this strikes me as silly. Meltwater is in no ways a rival news service. It’s not a news service at all. It’s a way for an organization to keep track of its coverage in the world press.

The think tank that employs me tried out Meltwater’s service some time back. I don’t know whether we ultimately signed up as a client; the rates were exorbitant. But it was a way, far more efficiently than possible through Google News or even Lexus-Nexis, to keep track of the mentions of the organization, its CEO, and other key stakeholders. In addition to the snippets, which I doubt we used all that much, there were various analytics and graphing packages.

While AP and NYT content was certainly included, this is in no way competitive with what they do. We were still reading the press for actual news content. Meltwater isn’t (or, at least wasn’t when I was involved with the trial run) a real-time provider. More importantly, while we were naturally interested on our mentions in the press, it was by no means the main AP or NYT content we were reading. That is, unless the only reason you would read AP content was to find out what AP was saying about you or your business, Meltwater was not competition for AP.

Conversely, so far as I’m aware, neither AP nor NYT provides such a clipping service.  Let alone one which includes hundreds of other news sources and allows integrated analysis. If Meltwater or something like it didn’t exist, in other words, companies wouldn’t instead become AP subscribers.

Indeed, AP isn’t really arguing that Meltwater is infringing on its business model; they just wanted Meltwater to give AP a piece of the pie.

As all of the clipping service’s competitors have already paid AP for a license, the impact could be insignificant for everyone but Meltwater while, at the same time, boosting the AP’s resources for gathering news.

Beyond the narrow issue of whether what Meltwater does is Fair Use, the judge’s logic would have an incredible chilling effect on, for example, what we do at OTB.

The judgement also points to the amount of content that Meltwater replicated. Whereas fair use allows anyone to reproduce a headline and snippets, Cote suggested Meltwater took “the heart” of the copyrighted work by also reproducing the “lede” and other sentences:

“A lede is a sentence that takes significant journalistic skill to craft.  [It shows] the creativity and therefore protected expression involved with writing a lede and the skill required to tweak a reader’s interest.”

Of that, there’s no doubt. But the notion that replicating the lede violates Fair Use goes against literally every bit of case law I’ve seen on this issue. There’s legitimate question as to whether taking several paragraphs of the work, especially without including substantial commentary or other transformative work, constitutes Fair Use. But taking the first sentence?!

As noted earlier in the story, Google won a landmark Fair Use case involving its image search. But, as someone who uses it on a regular basis—and who runs another site whose original images routinely come up in its searches—I’d note that the current iteration of the service now pops up a full-size, high resolution version of the image that takes away any incentive at all to visit the site that posted it. That would seem to run afoul of this ruling. And, maybe it should. But the natural retort is that, without Google’s indexing of said images, nobody who hadn’t visited the site organically would have any way of knowing that the image existed.

It’s worth noting, too, that US law is far more generous to those making derivative works than the laws of most countries. France and Germany, for example, are at war with Google News, trying to force them to pay to use even tiny snippets of copyrighted stories.