The Associated Press has been handed a victory in its battle against Meltwater, a Norway-based news aggregator that the AP said used its content without permission.
Meltwater's use of AP stories does not constitute "fair use" and Meltwater cannot logically compare itself to a search engine, a New York district judge ruled.
At issue is a daily news roundup Meltwater provides to its clients for a fee. The company uses a computer program to scrape news articles from the web, and its roundups often consist of a headline, the news story's lede (or main, explanatory sentence), as well as other sentences that use keywords as defined by Meltwater's clients.
AP argued that Meltwater needed a license to distribute this content to its clients. Meltwater likened itself to a search engine or a service like Google News, which grabs headlines and snippets from the stories to which it links.
In her ruling, however, Judge Denise Cote found in favour of the AP. She said that Meltwater often pulled more than just a snippet of news in its roundups. Of the 33 AP articles examined in this case, Meltwater excerpted between 4.5 per cent to 61 per cent of the stories.
The AP is not benefiting from being included in Meltwater's news roundup. The average click-through rate is 0.08 per cent, compared to an average click-through rate of 56 per cent on Google News.
"Instead of driving subscribers to third-party websites, Meltwater News acts as a substitute for news sites operated or licensed by AP," Judge Cote said.
Comparing itself to a search engine, meanwhile, "does not correspond to how Meltwater News itself functions," Judge Cote ruled. "Meltwater News is an expensive subscription service that markets itself as a news clipping service, not as a publicly available tool to improve access to content across the Internet."
Meltwater, the judge said, is profiting from the AP's work. "Permitting Meltwater to take the fruit of AP's labor for its own profit, without compensating AP, injures AP's ability to perform this essential function of democracy."
The lede, for example, "is a sentence that takes significant journalistic skill to craft," the judge concluded.
"For years all of us have been hearing that if it is free on the Internet, it is free for the taking. That's what Meltwater argued. The judge in this case just rejected that argument," AP President and CEO Gary Pruitt said in a statement. "We won on every single argument we made in the case. We are thrilled. This is first and foremost a victory for the public and for democracy."
Meltwater has vowed to appeal. "We're disappointed by the court's decision and we strongly disagree with it," Jorn Lyseggen, CEO of Meltwater," said in a statement. "We're considering all of our options, but we look forward to having this decision reviewed by the Court of Appeals, which we are confident will see the case a different way."
Meltwater has the backing of the Electronic Frontier Foundation, which has said that Judge Cote's ruling is troubling.
"Given that the court devoted several pages of text explaining how Meltwater was like a search engine (i.e., it scans the web for news and creates an index that allows customers to search for relevant information) it is difficult for us to see why the fairness of its purpose should turn on its success at getting customers to actually click through the links it provided," the EFF said.
As PaidContent noted, meanwhile, the ruling could be insignificant since all of Meltwater's rivals already have AP licenses for content. But it might also encourage the AP to go after more services it feels are infringing on its content.
Google has fought with various publishers overseas on the "snippet" point. Most recently, German lawmakers approved a bill that allows Google to freely include headlines and snippets from German publishers on services like Google News. But the bill originally wanted to impose a "link tax" on all excerpted content.
In December 2012, meanwhile, Google reached a deal with Belgian publishers after six years of litigation that allowed Google to include the publishers' content on its network. In February, Google reached a similar deal with French publishers. That included a commitment from Google to advertise in the Belgian newspapers, while those publishers in turn will use AdWords and other Google platforms in an effort to attract new readers.
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