Court provides guidance on news aggregation

6a00d8341c639653ef017d3bfefa27970cRecap and key takeaways

by Mark Sableman, ABM’s Information Policy Counsel

An important recent court decision, Associated Press v. Meltwater, provides useful guidance on news aggregation, distinguishing computer-driven commercial services that act as substitutes for original sources from editorially selective services that refer readers to the original sources.

The case has been in the spotlight for about a year because it pitted the Associated Press, an aggressive protector of its copyrights, against Meltwater, an international electronic news clipping service that essentially scrapes the Internet for snippets of news reports and sells it to its clients. AP carefully set up the case, describing its news reporting efforts, including sending journalists around the world, often risking their lives, to collect important and valuable news, which, it alleged, Meltwater then grabbed without authorization and profitably resold to its clients.

In defense, Meltwater claimed that it acted more like a search engine and collected snippets of news reports from AP and other providers. The company thereby hoped to get legal coverage from two prior copyright rulings, which ruled fair use when search engines collected, organized and displayed visual matter on the Internet. Meltwater, however, operated a closed system in which its aggregation services were offered only to its clients, who paid for that service.

In the course of the case, the parties argued almost all of the issues involved in news aggregation, including:

  • The purpose of the use, either to substitute for the original or to give a taste of it, the second of which might lead the reader back to the original source
  • The significance of the snippets used by the aggregation service
  • How much of the original stories were used
  • How and why the selection was made
  • What other parties are doing, and whether any of them are paying for the rights to aggregate

Ultimately, the U.S. District Court for the Southern District of New York, on March 21, 2013, ruled against Meltwater, primarily because Meltwater’s key “search engine” defense failed and its extensive commercial use of AP content deprived AP of licensing income based on its well-established licensing plan.

For news aggregators that operate differently than Meltwater, like ABM members, some takeaways can be drawn from the decision:

It matters if readers are “clicking back”

It’s important to discern whether your service is a substitute for the original or a teaser for it. Despite claiming it was like a search engine, Meltwater didn’t reveal much of its data on how often its users clicked back to the original source material.  The limited evidence that was divulged showed Meltwater’s click-through rates to be tiny – less than 1 percent  – which weighed heavily against Meltwater. Services with much higher click-through rates should be able to better justify themselves as references to the original sources, not substitutes for them.

The content you quote from the original is important

Meltwater always quoted the lead of the stories it aggregated, and AP argued that leads were key creative elements of AP stories. AP might have stretched a bit when it characterized the top of the standard journalistic inverted pyramid as highly creative, but the lesson is that aggregation services should focus their summaries on facts rather than creative content.

Editorially selected differs from computer-driven

Editorially selected services are more likely to be allowed than ones based on computer programming to scrape certain prescribed sites.

Keep in mind the number of clipped characters

Meltwater typically used 400 or more characters of the original source, whereas Google News, which the Court viewed more favorably, typically uses something in the range of 200 characters. But don’t get too wed to those numbers – copyright cases never rest on mechanical numerical tests despite many prevalent myths. However, don’t hesitate to test your service against these guides, and consider whether you are using more than what is needed.

Aggregators should follow the industry

Industry practices matter a lot, especially when there is an established market for licensing content, as there was with AP.  The court put great weight on the fact that Meltwater’s key competitors had purchased licenses from AP, and, given the fees Meltwater was charging for its service, Meltwater could have readily paid AP for its content, too.  Industry practices showing widespread use of news aggregation services could also become important in future cases,.

The decision, which Meltwater is likely to appeal, isn’t the last word on news aggregation but lays out the legal landscape. Companies creating such services, or whose news content is aggregated by others, should pay careful attention.

ABM members with questions about news aggregation and headline services can contact ABM Information Policy Counsel Mark Sableman at msableman@thompsoncoburn.com.

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