AP court win shows why content clipping on the web is not fair use

The Associated Press (AP) and New York Times have won a court case involving a company that scraped content from the internet without paying for it.

As paidContent notes, the case has massive implications for fair use and copyright law online.

The defendant in the case is Meltwater, a company which monitors the internet for news about its clients. These clients, which include companies and governments, apparently pay thousands of dollars a year for news alerts and the ability to search the site’s database.

The alerts come in the form of newsletters, which include content from AP and other sources. These reports include headlines, the first part of the story, known as the lede, and the sentence from the story in which the relevant keyword appears.

When the AP demanded that Meltwater paid it a licensing fee for using the content, it refused, prompting the news agency to sue for copyright infringement. Meltwater responded by claiming that it was able to use the stories under copyright’s “fair use” rules which make exceptions under certain circumstances.

In fact, it reckons its activities are similar to those of a search engine. In effect, it’s saying that because Google can show headlines and clips from stories, it should also be allowed to.

US District Judge Denise Cote shot that down however, taking particular issue with Meltwater’s claim that it was a search engine. It is, she said more like a 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,” she said.

Further diminishing Meltwater’s claims are the click-through rates it gets on its clips. Google News users apparently click-through to 56% of excerpted stories, while Meltwater’s click-through rates are only around 0.8%.

The judge also suggested that Meltwater was stealing the “heart” of a copyrighted work by using the lede:

“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,” she said.

The ruling also suggested that Meltwater had taken more content than was necessary for a search engine and that the potential economic harm against AP weighed heavily against any fair use arguments:

Paraphrasing James Madison, the world is indebted to the press for triumphs which have been gained by reason and humanity over error and oppression […] 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.

Meltwater meanwhile has vowed to fight the decision. It CEO claims the company is “especially troubled by the implications of this decision for other search engines and services that have long relied on the fair use principles for which Meltwater is fighting.”

Meltwater AP Ruling