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.
March 29, 2013
Last time, we talked about major newspapers backing the Associated Press against media monitoring company Meltwater. Today, let’s look at some of the responses from around the web:
ArsTechnica has a balanced summary of the dispute:
Last week, the nation’s largest newspapers lined up to tell the New York federal judge considering the case that they support the AP. An amicus brief [PDF] was filed by The New York Times, The McClatchy Company, Advance Publications, and the Newspaper Association of America, which represents 200 newspapers around the country. In the brief, they argue that Meltwater isn’t a search engine—it’s a competitor.
The Brief discusses the suit’s implications:
The outcome of the lawsuit will depend on how convincing Meltwater’s search engine argument is. They use the same pieces of information—a headline, link, and short snippet—and are generally agreed to be covered by fair use provisions, but the legal precedents against them are racking up. And if the AP manages to get a favorable ruling over Meltwater, other search engines could find themselves being asked for licensing fees too.
Meltwater responds to the filing of the amicus brief:
Plaintiff’s claims are barred in whole or in part by the doctrine of copyright misuse. Through this Complaint and through other means, Plaintiff seeks to misuse its limited copyright monopoly to extend its control over the Internet search market more generally, thereby improperly expanding the protections afforded by U.S. copyright law. Among other things, AP has misused its copyright monopoly by demanding that third parties take licenses for search results, which do not require a license under U.S. copyright law, and AP has also formed a consortium (called NewsRight) with the purpose of further misusing its copyright monopoly to extract licensing fees that exceed what the law allows.
BurrellesLuce weighs in with their perspective:
[W]e curate content on behalf of our clients and charge a royalty. Those royalties go back to the publishers. PR professionals are understanding, more and more, why these measures are necessary. They recognize the difference between a genuine media monitoring service and an aggregator. They realize they may be exposing their organization, as well as their clients, to substantial copyright liability by using the latter.
Of course, this ruling will affect more than PR professionals. Anyone that analyzes the news and other media to understand their competitive landscape has an interest in this court case.
How do you think this will play out?
March 15, 2013
New developments are unfolding in the Associated Press lawsuit against monitoring company Meltwater. The suit alleges that Meltwater is copying and selling licensed content without compensating content publishers. This week, several papers have filed amicus briefs on behalf of the AP, saying that their business would be adversely affected if companies are allowed to redistribute content without appropriate licensing fees.
As CBS reports:
The Times and other companies — including USA Today publisher Gannett (GCI), The McClatchy, (MNI) and Advance Publications — said in court papers filed late Monday that their businesses would be jeopardized if Meltwater’s activities were allowed to continue. The publishers argue that their websites and other digital businesses that generate revenue through advertising, subscriptions and licensing fees are threatened if other companies can distribute their content without paying licensing fees.
“None of these revenue streams can be sustained if news organizations are unable to protect their news reports from the wholesale copying and redistribution by free-riders like Meltwater,” the filing said.
Also joining in the friend-of-the-court brief was BurrellesLuce, a Meltwater competitor, that says it is at a disadvantage because it pays to license content that Meltwater takes for free.
Moreover Technologies is developing Metabase Premium in conjunction with publishers, which provides full access to premium content without any legal, compliance, or administrative wrangling.
We will be commenting here as the case progresses.
February 27, 2013
The Internet is all abuzz at the moment as the battle lines between media monitoring group Meltwater and Rupert Murdoch become clearer, with the media mogul’s UK flagship the Times Online now blocking Meltwater from indexing Times Online content.
Blog site paidContent:UK broke the story and, as ever, does a thorough write-up on the facts. They report how the Newspaper Licensing Agency (NLA), owned by the major UK publishers, recently introduced a licensing system allowing online access to member sites to those companies signing up for the online use license.
With Meltwater being the only non-NLA compliant agency, and now this action from Murdoch’s News International, it is shaping up to be an interesting year for copyright as the publishing industry adapts to the changes in the online marketplace.
March 18, 2010
