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Feb. 15, 2012, 2:30 p.m.

Is the AP suing an aggregator or a search engine in the Meltwater case?

The distinction matters because courts are often more favorable towards search engines in fair use cases.

The Associated Press is heading into court to defend its copyright, but its leaders swear they’re not on a crusade against aggregators. How the case evolves could pivot on how a court considers the site AP is suing — as a news clipping service or as a search engine.

Tuesday morning, the AP filed suit against Meltwater, a news-monitoring service that delivers stories to clients for a fee. In the suit, the AP alleges Meltwater used their content verbatim, without a license, for their own profit. It’s a copyright case, with Meltwater accused of stealing content and customers from the AP, as well as “hot news” misappropriation.

According to the company’s website, Meltwater offers a suite of media monitoring and aggregation products for businesses, including alerts and newsletters. Meltwater says it gathers information from more than 160,000 news sources, and it explicitly states: “Meltwater News is mindful of all copyright laws and regulations, making sure that all reports produced using our solutions adhere to these standards.”

(Meltwater is facing other copyright issues across the pond. In a strange coincidence, Meltwater also received a ruling Tuesday from the U.K.’s Copyright Tribunal directing the company to pay a licensing fee to the British Newspaper Licensing Association.)

In a statement released Tuesday afternoon, Meltwater said it complies with U.S. copyright law as it pertains to search engines: “Meltwater respects copyright and operates a complementary service that directs users to publisher websites, just like any search engine.”

That last bit is one of the key issues here. Is Meltwater is a modern-day clip service, descended from its print-based predecessors, or is it a search-like product that delivers information in snippets? Andy Sellars, a staff attorney at Harvard’s Citizen Media Law Project, told me that distinction is important because courts have applied the fair use doctrine in different ways for the two.

“If you characterize yourself as a news-clipping service, you find yourself in a whole cluster of cases that have not found fair use,” Sellars told me. “But if you characterize yourself as a search engine, you find yourself in a cluster of cases that have found fair use.”

Search engines like Google inevitably create copies of publishers’ copyrighted content as part of their work, but courts have typically found they pass the fair use test. That’s likely why Meltwater is talking about itself in the terms of a search engine that crawls an extensive list of sources and offers up content on demand to clients. If all Meltwater is doing is providing a short blurb from a story and link, then they could be in the clear, Sellars said.

But in the complaint the AP points out that unlike free aggregators, Meltrock is operating in a closed system that customers can only access by paying a fee. The company’s tools for customers are built specifically to replace the need for the AP, the complaint argues:

Meltwater provides a fully integrated closed system that is designed to supplant the need for an AP subscription, not to drive traffic to legitimately licensed sites. First, its excerpts of AP stories appropriate sufficient actual and expressive content that many subscribers have no need to click through to the legitimately licensed site. Moreover, Meltwater has purposefully built into its Meltwater News system a way for its customers to capture, save and store the text of retrieved news articles on the Meltwater website, including AP articles. For additional subscription fees Meltwater News customers can also incorporate the infringing content — including the full text of AP articles — into a branded newsletter through the Meltwater News platform.

But the AP went a step further than a copyright-infringement suit by adding hot news misappropriation into the mix, saying Meltwater is free-riding on the AP’s “significant investments in gathering and reporting accurate, timely news, including breaking news.” Hot news, lest we forget the Fly on the Wall case, says publishers in some cases may have a limited monopoly over news they’ve reported (or put some blood and sweat into). But Sellars says AP is muddling its hot news claim by injecting arguments of the financial consequences of Meltwater’s use of unlicensed AP content. “To what extent there is a hot news claim in there, it’s hard to see whether that is the main thrust,” he said. “The copyright case is much more substantive.”

The AP has not been shy about its desire to protect its content from free-riders, whether they are aggregation sites or individual bloggers. But AP went out of its way to note it is picking its battles carefully, calling Meltwater “not a typical news aggregator” and stating it does not “in any way seek to restrict linking or challenge the right to provide headlines and links to AP articles.” From the complaint:

This lawsuit is not a general attack on news aggregators — many of whom are AP’s licensees. Nor does this lawsuit in any way seek to restrict linking or challenge the right to provide headlines and links to AP articles. Meltwater’s actions are readily distinguishable from most news aggregators. Most notably, Meltwater is a closed system sold only to subscribers for a fee, and not a means of expanding public access. As such, Meltwater builds a directly competing product on the backs of news organizations like the AP.

There’s some tightrope walking there, and it seems of a piece with the strategy that’s been outlined by NewsRight, the content-tracking and licensing system endorsed (and invested in) by 29 news outlets, including the AP. The company claims it is more of a copyright tracker than a Righthaven-style litigator, with an emphasis on using software to measure the use of content across more than 16,000 websites. That includes a revised version of the AP’s Beacon, a subtle piece of JavaScript that is included in syndicated feeds from the cooperative. In an interview with us in January, NewsRight president David Westin noted the company’s stance “doesn’t mean down the road there won’t be litigation. I hope there’s not. Some people may decide to sue, and we can support that with the data we gather, the information we gather. But…those are very expensive, cumbersome, time-consuming processes.”

In the suit, Meltwater is accused of periodically removing information that could ID the AP as the copyright holder on articles. Stripping out copyright management information is banned by the Digital Millennium Copyright Act; even though it’s usually associated with material like movies and music, it can also applies to text-based news. Sellars said the case could be a test as to whether fair use can be applied to a person or company that removes copyright information. “Even if you’re using fair use, if you circumvent encryption, you could be held liable,” he said.

Needle-in-a-haystack photo by Tomas Buchtele used under a Creative Commons license.

POSTED     Feb. 15, 2012, 2:30 p.m.
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