Wednesday, March 6, 2013, by Kelly Anderson
Last February, The Associated Press (AP) filed suit against Meltwater Group of San Francisco, a paid news subscription company that monitors the media for its corporate clients who in turn use the acquired information to evaluate the effectiveness of their public relations and marketing strategies. In the complaint, AP alleged that Meltwater charges their corporate consumers a fee for “content created at the expense and through the labor of others.” AP seeks an injunction from continuing operation, as well as damages of up to $150,000 per infringement. Meltwater has responded that it simply performs the same functions as a search engine, with the slight difference being that it customizes its results for its clients based on their particular keyword requests. Meltwater maintains that its “service is compliant with U.S. copyright law, with the U.S. courts having repeatedly held that internet search is legal.”
The Associated Press alleged that Meltwater charges their corporate consumers a fee for “content created at the expense and through the labor of others.
Last week, many of the country’s most prominent newspapers, including The New York Times, The McClatchy Company, Advance Publications, and the Newspaper Association of America, in total representing approximately 200 of the nation’s newspapers, filed an amicus brief in support of the AP. They argue that Meltwater should not be viewed as a search engine, but rather as a competitor, making its money by copying the headlines and lead paragraphs of stories and distributing them to its customers, thus cheating newspapers by giving away “the most valuable expression news media create and market.”
The amicus brief lists myriad reasons that Meltwater should not be considered a search engine. First, Meltwater only delivers its content to those customers paying for its services. Also, it limits what it searches (only articles from a specific list of news providers), using that information on a regular, systematic basis. Meltwater always delivers the headline and lead of relevant articles and occasionally provides additional content, depending on the variety of information the consumer has requested. Finally, Meltwater “produces click-through rates that are very substantially lower than those produced by other aggregators, suggesting that Meltwater is fully superseding AP (and its licensees) as the source for AP content (and newspaper content generally).” Publishers argue that Meltwater’s business model contains copyright and fair use violations, because Meltwater’s repackaging of the information is not transformative, nor is it used for a different person.
If Meltwater’s continual and systematic copying of large quantities of information is deemed fair use, the AP stands to lose not only the revenues that Meltwater and similar companies should be paying for the content in question, but also the revenues they are currently collecting from other media monitoring companies that are paying for licenses based on their assumption that copying expression from news services does not inherently fall under fair use. On the other hand, if the court holds that Meltwater’s large-scale replication and re-selling of information is not fair use, Meltwater will simply be required to pay for the expressive content used in conducting its business.
The Electronic Frontier Foundation (EFF) and the Computer & Communications Industry Association have also filed amicus briefs. However, these are in support of Meltwater, attempting to draw the line between Meltwater’s service and that of a Google-type search engine. Still, many news services are of the opinion that Google News is also on the wrong side of the line, as demonstrated by the lawsuit filed by Agence France-Presse against Google in 2005. A 2010 licensing deal between the AP and Google may be the only reason a similar suit has not been pursued in the U.S.