Publishers can rest easy knowing that their content online will be protected—for now. The U.S. District Court for the Southern District of New York has ruled in favor of the Associated Press in its copyright infringement suit against San Francisco-based Meltwater News, a self-described commercial media-monitoring service.
At the heart of the case was the assertion by Meltwater News that content published and freely available on the Internet can be scraped, compiled and commercially resold under fair use laws.
“It’s an important decision that recognizes the critical value and import of the press in the Internet age,” Elizabeth A. McNamara, a partner at the Seattle-based law firm Davis Wright Tremaine, who represented the AP, tells FOLIO:. “For years, Meltwater and others have maintained that news available on the Internet can be freely taken and commercially sold—this decision unequivocally rejects this argument. The court recognizes that Meltwater cannot construct a business model that does little more than free-ride on costly newsgathering.”
In February 2012 the AP filed suit against Meltwater for copyright infringement, but Meltwater maintained that it operated as an Internet search engine and that its use of AP content was protected by the fair use doctrine.
“Meltwater copies AP content in order to make money directly from the undiluted use of the copyrighted material; this is the central feature of its business model and not an incidental consequence of the use to which it puts the copyrighted material,” noted U.S. District Judge Denise L. Cote in her 91-page opinion. “Investigating and writing about newsworthy events occurring around the globe is an expensive undertaking and enforcement of the copyright laws permits AP to earn the revenue that underwrites that work. Permitting Meltwater to take the fruit of AP’s labor for its own profit, without compensating AP, injures AP’s ability to perform this essential function of democracy.”
According to its website, Meltwater News’ public relations software provides global, online media monitoring of more than 190,000 news publications as well as Twitter, YouTube, Facebook and blogs to deliver daily alerts and insights to its clients. The company says its service is like many other search engines, which displays short excerpts from materials that are made publicly available on the Internet, linking users directly to the original versions of content on the Web. Meltwater would use both the headline and lede from the AP in its news distribution alerts.
The court, however, rejected the argument that Meltwater News is indeed a search engine, despite an amicus brief of support from organizations like the Electronic Frontier Foundation and Public Knowledge.
“[E]xploitation of search engine technology to gather content does not answer the question of whether the business itself functions as a search engine,” wrote Cote. “Using the mechanics of search engines to scrape material from the Internet to provide it to consumers in response to their requests does not immunize a defendant from standards of conduct imposed by law through the Copyright Act, including the statutory embodiment of the fair use defense.”
In the 24-hour news cycle that is 2013, many online news outlets repurpose content from other publications and media organizations. Under the judge’s decision, that right will not be impacted.
“The AP and all news organizations and publishers rely on fair use on a daily basis and they embrace fair use,” says McNamara. “This isn’t a battle against fair use. What Meltwater does is not fair. It sells verbatim excerpts of news stories, including the all-important lede, with no commentary, no analysis and no context. As such, it acts as a substitute for news and directly harms AP’s licensing.”
Meltwater has issued a statement saying it will appeal the judge’s ruling because it “believes the ruling misapplies the fair use doctrine and is at odds with a variety of prior decisions that have paved the way for today’s Internet,” a statement from the company says.
“I believe this decision is a model of clarity—entities like Meltwater will likely follow the court’s instruction and hopefully new actions will not be necessary,” adds McNamara. “The decision resets the proper balance between the value of legitimate rights in the news and the value of legitimate search engines. For too long we’ve heard that anything that’s free on the Internet is free to be taken. This case establishes that is not the case, that there are boundaries, and that Meltwater clearly crossed the line.”