Court Ruling Changes the Media Monitoring Landscape

March 29, 2013 Chad Bolender Leave a Comment

Last week, a US Federal Court ruled in favor of the Associated Press in their lawsuit against media monitoring company Meltwater. We have written previously about BurrellesLuce filing an amicus brief and reactions around the web.

At stake is the definition of “Fair Use” as it relates to content published online. It has ramifications for the business models and legal strategies of publishers, as well as media monitoring companies and their clients.

Jeff John Roberts at BusinessWeek summarizes how the court arrived at its judgment (links in the original):

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 the 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 judgment. 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.

The judgment 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.”

How the ruling affects publishers

Publishers and media monitoring companies haven’t always worked together and this is going to change. Newspapers are needing additional revenue streams and the clients of media monitoring outfits have been a neglected source of money.

Publishers are going to have to work together to exploit this income source. To an end user tracking mentions of their company or attempting to do competitive analysis, it is quite a lot of effort to piece together a total national or international catalog of licensed sources. Media monitoring companies are the natural connection between publishers and end users.

This court decision gives content publishers a strong position in this partnership. Companies that try to get around their wishes have this legal precedent working against them.

You’re a Media Monitoring Company (MMC), now what?

As I alluded to above, the key to survival is acquiring licenses to monitor and distribute content from publishers. This will protect you from legal actions like the Associated Press took against Meltwater.

Groups like NewsRight and companies such as BurrellesLuce in cooperation with Moreover Technologies have developed one solution, Metabase Premium. Before the dust settles, others will likely emerge, as well.

Whatever you do, complying with the publishers’ wishes is key. Some are satisfied with the value of MMC’s driving traffic to their sites. Others, like in the Meltwater case, see it as an infringement. Protect yourself and your clients.

You’re a client of a Media Monitoring Company, are you protected?

While this lawsuit has defined some parameters of Fair Use, what’s less clear is what happens if you are distributing content without permission from the publisher. Ask the company that you’re using if they have licenses for the content that they are distributing to you. Make sure that you are protected from lawsuits yourself.

What does the future hold?

I’ll leave you with the words of Corynne McSherry, director of intellectual property at the Electronic Frontier Foundation, which opposes the ruling:

“What we’re going to see now is a lot of litigation over what is a legitimate search engine or not,” said McSherry, whose organization filed an amicus brief backing Meltwater. “I think this opinion muddies the water.”

*UPDATE: These click-through stats refer only to the 33 articles being disputed and not to the rates of the services as a whole.

Filed under: media monitoring,news,publishers

Tags: associated press, court, lawsuit, Meltwater