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Feb. 26, 2013, 10:58 a.m.
LINK: www.niemanlab.org  ➚   |   Posted by: Joshua Benton   |   February 26, 2013

The New York Times Co., Advance, Gannett, and McClatchy, among others, have filed a brief in support of AP’s suit against Meltwater, which the wire giant filed in February 2012. From AP’s description of Meltwater back then:

As a subscriber only service, Meltwater distributes “Meltwater News,” which styles itself as a modern-day electronic clipping service with a guarantee of “no copyright fees.” Meltwater delivers to its paying customers substantial verbatim excerpts from AP stories and other published news stories based on keywords selected by its customers. As AP’s complaint alleges, Meltwater also offers its customers the ability to store these excerpts, as well as full-text articles, in a customer archive housed on Meltwater’s server and facilitates the incorporation of AP articles into customer newsletters to be further distributed…

“Meltwater free-rides on AP’s significant investments in gathering and reporting news,” said [AP acting general counsel Laura] Malone. “In short, Meltwater earns substantial fees for redistributing premium news content, while bearing none of the costs associated with creating that content.”

AP’s then-CEO Tom Curley called it “a parasitic distribution service.”

Meltwater’s own description of its service: “Meltwater News is more than a traditional media monitoring service, combining the industry’s broadest search capabilities, exclusive analytical tools and a consultative relationship with its clients, Meltwater News delivers the business critical information that executives in organizations worldwide require to gain, and maintain, their competitive edge.”

One of our previous stories about the case was headlined “Is the AP suing an aggregator or a search engine in the Meltwater case?” Well, the amicus brief’s first argument is headlined: “MELTWATER IS NOT A SEARCH ENGINE.”

The rest of its claims: Meltwater’s use of AP material is not transformative; it harms AP’s “existing and potential” markets; it fails the fair use test; and Meltwater had no “implied license” to the material. One claim that does not appear to be advanced in the brief is the often controversial “hot news misappropriation,” which was part of AP’s original claim.

In a statement, Malone (still acting general counsel) said: “AP is very pleased with this support. It demonstrates that the media community stands together in recognizing that Meltwater’s business of appropriating and selling media content cannot be excused as fair use and instead is infringing.”

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