Copyright Alliance

Newspapers File Amicus Brief in Meltwater Media-Monitoring Service Case Newspapers File Amicus Brief in Meltwater Media-Monitoring Service Case Submitted by Luke Platzer on March 6, 2013 The following post is courtesy of Luke Platzer, of Legal Advisory Board member firm Jenner and Block. Many popular online services have business models that center around scraping content off the websites of news organizations, and then repackaging or customizing it for subscribers in some way – whether in the form of dedicated news-only search engines, “portals” linking to articles on third-party sites, or customized reports detailing news stories that contain specified terms. In The Associated Press v. Meltwater U.S. Holdings et al., No. 12-cv-1087 (S.D.N.Y.), the AP is suing one such company, Meltwater, for infringing its copyrights in AP news stories that Meltwater incorporates into its reports. As the case has moved into the summary judgment stage, it has attracted substantial interest from amici, with theComputer & Communications Industry Association (“CCIA”), the Electronic Frontier Foundation, and Public Knowledge all weighing in on the side of Meltwater. Last week, Copyright Alliance member the Newspaper Association of America (“NAA”), joined by several news organizations and others, joined the fray by filing an amicus brief supporting the AP. The assorted web-based services that repackage third-party news content take many different forms, varying as between how much content from news organizations they supply to their customers and the forms in which they make such content available. In Meltwater’s case, the service monitors news websites for search terms specified by the customer, and then provides (by way of an automated algorithm) regular reports that include each article title, lede, and the text surrounding each appearance of the customer’s specified search terms, accompanied by links to the full articles and various other analytic tools. While Meltwater is certainly not the only service to prepare custom reports based on subscriber-provided terms, many services that operate along similar lines have entered into license agreements to use the relevant news content, whereas Meltwater has taken the position that it does not need a license, thus setting up its legal battle with the AP. (In fact, one of the parties to join the NAA’s amicus brief, BurrellesLuce, is such a media monitoring service that obtains licenses from news organizations and thus finds itself at a pricing disadvantage relative to Meltwater, which does not). There is no real question that Meltwater’s service copies portions of the AP’s copyrighted works and then transmits them to its subscribers. (Meltwater and CCIA also try to suggest that elements of the AP’s works are not copyrightable because they are factual, but the argument seems ill-suited to the facts of the case, given that Meltwater expressly advertises its service as helping its clients assess “how the news is being reported” – i.e., the expressive rather than factual content of the articles). So the only meaningful question in AP v. Meltwater is whether Meltwater’s use can be protected either by fair use or some kind of implied license theory. The fair use issue is the more interesting of those two questions, and one that many other online aggregation services are likely to be following closely. Meltwater, backed by its amici, tries to analogize its role to search engines, which have fared well in the courts, in cases such as Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003), Perfect 10 v. Amazon.com, 508 F.3d 1146 (9th Cir. 2007) and their progeny, with the argument that helping users locate content online is a transformative purpose. A handful of courts have ruled that indexing or creating thumbnails of copyrighted content in the course of operating searching services is fair use. See e.g., Authors Guild, Inc. v. HathiTrust, No. 11 Civ. 6351(HB), 2012 WL 4808939 (S.D.N.Y. Oct. 10, 2012). As the NAA points out in its amicus brief, however, analogizing Meltwater to a search engine doesn’t quite work. Among other things, the content that a typical search engine user receives (such as a small thumbnail image in Kelly and Perfect 10, or a brief snippet of text describing an article in the context of a conventional web-based search engine, or an indication of the pages of a book on which words can be found in Authors Guild) can’t substitute for the original in any meaningful way. In fact, one uses a search engine precisely to access the original work. Meltwater, on the other hand, gives its subscribers substantial written content around the search terms they are interested in, as well as the title and lede of the article – which in many cases allow its users to consume directly the portions of the news stories that they care about. Taken to its logical conclusion, it seems obvious that there could be no fair use defense if a media monitoring service sent its subscribers copies of responsive news articles in their entirety – so the fact that Meltwater is providing substantial portions of the underlying articles should put Meltwater in a much more difficult position, for purposes of the fair use inquiry, than a generic search engine that links to news articles without copying large amounts of text from them. To be sure, Meltwater has a response to this as well – that the use of its service to survey how the media are reporting on specified subjects is also a transformative use that differs from consuming news reports on their own terms, and for which its users need to see the parts of the article that feature their search terms. But this argument is problematic. It is not at all clear that analyzing how media outlets are covering a story is necessarily a transformative use to begin with (as the AP and NAA both point out in their briefs, one can perform the same analysis by reading the stories from the AP directly). And even if it were, it still doesn’t address the fact that nothing is stopping Meltwater’s users from using the service to read the day’s news about their favored subjects. In Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104 (2d Cir. 1998), for instance, a case relied upon heavily by the AP, the Second Circuit was not sympathetic to the argument that the service in question – which allowed users to listen to radio stations of their choosing over the telephone – was transformative merely because its users might listen to radio broadcasts for purposes other than entertainment value (such as auditing advertising playbacks or talent scouting), in part because those were merely potential uses by users that could apply equally to listening to the radio stations directly, as opposed to differentiating features of the defendant’s service. A similar rationale seems to cut against Meltwater here. Meltwater’s implied license theory is less interesting, mostly because it is a variation on a recurring argument used by copyright defendants who make unauthorized uses of works that can be found online: the familiar claim that once copyrighted works are freely available and accessible on the Internet, the consequent ubiquity of the works should prevent the copyright owner from enforcing its rights. In AP v. Meltwater, the added wrinkle to this theory is that websites that feature AP content can, at least in theory, exercise self-help to prevent indexing of AP content by search engines and services such as Meltwater, such as by putting news articles behind a paywall, or by including “robot.txt” instructions on their web servers to prevent automated crawling and indexing. The CCIA, in particular, uses its amicus brief to argue that copyright owners should be held to the burden of using this kind of technological self-help if they want to prevent unauthorized uses of their works by online services that rely upon bots to scrape content from third-party sites, since those bots can’t read and consent to the terms of use that AP members post on their websites. Hopefully the Court will not take this argument any more seriously than courts have taken it in other contexts where copyright defendants have tried to shift the burden onto copyright owners to object to specified uses of their works, as opposed to leaving the burden on users of those works to obtain authorization for their intended use. As the NAA amicus brief points out, copyright is not an “opt-out” system; a copyright owner is entitled to decide the terms, if any, on which it licenses its works, and some news organizations might reasonably want to make their content widely available to readers on the Internet without also authorizing third parties to redistribute it for profit. But more importantly, CCIA’s self-help theory does not even fit the facts particularly well. Leaving aside that the AP’s content is published through members and licensees whose websites the AP does not directly operate, a copyright owner’s control over its website’s authorizations for crawling and indexing by third-party bots is a very blunt tool. A copyright owner might be able to allow or disallow indexing in its entirety, but not to control how a service that indexes its content then goes on to use it. Some news organizations, for instance, might want to allow their articles to show up in general-purpose search engines without thereby also authorizing the wholesale copying of large portions of their articles by third-party aggregators. The Copyright Act allows owners to make those kinds of distinctions in tailoring the uses they authorize – a fact the Court will hopefully take into account as it considers the summary judgment motions.

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