Is Content Aggregation Copyright Infringement?

A federal district judge in New York ruled for the Associated Press in the case of AP v. Meltwater. The ruling, if upheld on appeal, can have large ramifications throughout the blogosphere and for content aggregators.

The Associated Press, or AP, is a not-for-profit group which creates news reports from all over the country. AP’s revenue comes from licensing fees it earns by licensing uses of its articles to newspapers, websites, and other subscribers.

Meltwater is an Internet media monitoring service. Their news service is a method for their clients to keep tabs on how they are portrayed in the press. AP alleged that Meltwater is infringing AP’s copyright by republishing AP articles without a license. Meltwater uses a computer program to scrape news articles on the web and provides excerpts of those stories daily to its subscribers. Meltwater did not dispute that it took content from AP stories that is protected by the Copyright Act. Instead, Meltwater claimed an affirmative defense of fair use. Meltwater argued it is a search engine, albeit one which is a closed system for subscribers only. This case revolves around thirty-three Registered Articles of the AP which Meltwater copied and then delivered excerpts of to its subscribers. Meltwater News employs automated computer programs known as “crawlers” to scan the Internet for news. This is the same method which most search engines will employ. Meltwater’s crawlers scan approximately 162,000 online news websites from over 190 countries each day to create an index of the websites’ content. It is of notes that Google, Yahoo, and other large search engines do have licenses from the AP.

Meltwater argues that they are not liable for their copyright infringement since it is  “fair use” of the plaintiff’s copyrighted work.17 U.S.C. § 107 provides that “the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research, is not an infringement of copyright.” It is important to note that Meltwater did not claim it was ‘news reporting’ as stated in the fair use exception, but rather that it was a search engine. Courts look to four non-exclusive statutory factors to determine whether a defendant has made fair use of a copyrighted work: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. In this case, the first and fourth factors weighed heavily against Meltwater. For the first factor, the district court quote Harper & Row Publishers, Inc. v. Nation Enterp., 471 U.S. 539, 562 (1985), “the fact that a given use is profit-driven is not the focus of the commerciality inquiry. Instead, the “crux of the profit/nonprofit distinction is . . . whether the user stands to profit from the exploitation of the copyrighted material without paying the customary price.” Given that Meltwater charges it subscribers thousands of dollars annually for their service, the purpose and character of the infringement is clearly for profit. For the fourth factor, the court quoted Castle Rock Entertainment, Inc v. Carol Publishing Group, 150 F.3d 132, 145 (2nd Cir. 1998),  as the concern of this factor is not with “whether the secondary use suppresses or even destroys the market for the original work or its potential derivatives, but [with] whether the secondary use usurps or substitutes for the market of the original.” Meltwater subscribers would have no use for an AP subscription when Meltwater can provide the same information. This constitutes suppressing the market for the original work.

Ultimately, the court decided that commercial Internet news clipping services do not provide enough of a public service to outweigh the enforcement of the copyright laws and therefore allowing Meltwater a free ride on AP’s reporting cannot be justified

If this ruling is upheld by the appellate court and/or the Supreme Court, then content aggregators and bloggers will need to take notice. The internet is often though of as the wild west when it comes to intellectual property law. There is a fine line between a blog linking to another website with a short description, and a blog wholly copying another website’s posts. For amateur bloggers, this is a small matter of poor etiquette, but for professionals, Meltwater may become a very noteworthy.