A recent opinion of the United States District Court for the Southern District of New York declared the Associated Press the victor in a copyright dispute.  The defendant was Meltwater, a service that provides “clips” of online news.  An article described this situation as a battle between copyright protection and online freedom of expression–a battle in which copyright protection came out on top.

Meltwater defended its actions as fair use.  Successful examples of fair use include criticism, education, research, and news reporting.  However, the judge was not convinced.  While news reporting can be an example of fair use, the court concluded that Meltwater used too much of AP’s material to qualify under the exception.  The judge stated that Meltwater “copies AP content in order to make money directly” from the material, and that “[p]ermitting 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.”

Needless to say, the AP, the New York Times, the Newspaper Association of America, and other news companies were all pleased with the verdict.  Meltwater’s CEO, Jorn Lyseggen, on the other hand, stated, “[w]e’re disappointed by the court’s decision, and we strongly disagree with it.”  Meltwater plans to pursue an appeal.

Meltwater’s clipping service has been compared to Google alerts.  European news outlets are attempting to pursue a similar suit against Google.  Like Meltwater, Google is defending its actions on the basis of fair use.  Google also contends that its service increases publicity for the European news outlets.  It will be interesting to see the influence that the AP decision has over the Google conflict. However, an article stated that “we might also want to note that however much the various European newspaper groups have complained about Google News none of them has ever actually managed to get a court to agree with their whinings.”

Is the AP decision too constraining of online freedom of expression?  Should it be overturned on appeal?  And what does this outcome mean for the future of Google?

Samantha Taylor

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5 Responses to “Clipping” as Unfair Use: The Limited Nature of Online Freedom of Expression

  1. Emma says:

    Interesting post. I really like Avery’s property take on the subject, and I have to agree with it. It’s nice to see the relevance of a 1918 case to online news! To me, the original labor and efforts of reporting deserve protection. I think it is possible to draw a coherent line between the clipping described here and services where articles are summarized and linked to, and that this case may be a good step in that direction.

  2. ADM says:

    As Marina suggested, it will be interesting to see how this decision applies to other news “repackaging” services. Since Yahoo recently invested (allegedly as much as $30M) in Summly, a service that summarizes other news stories, I’m sure they are interested in how this decision could affect this investment.

  3. Marina Visan says:

    Nice post! I’ve always been a fan of similar services, such as the Daily Beast, for example. However, the Daily Beast differs, as subscribers are not signing up for particular key words, which I believe is the case with Meltwater. Nevertheless, because the services are similar in the sense that subscribers can sign up to receive information containing references to other news articles on the various news websites, I’m worried about a slippery slope. While Meltwater merely provides the segment of the articles verbatim, the Daily Beast provides summaries with a link to the original articles. Regardless, after this decision, which I do believe to be constraining online freedom of expression, I hope that other services, such as the Daily Beast, are not in danger of being attacked.

  4. Avery VanPelt says:

    Great post! The court’s holding in this case seems very reminiscent of the Supreme Court’s “hot news” holding in INS v. AP, 248 U.S. 215 (1918). In that case, the Court found that there is a quasi-property right in reporting the news, giving a company a limited proprietary interest in it against a competitor. This seems a modern take on that decision, in the context of online news clipping. Although the hot news exception certainly comes up against other rights and values in today’s world (and was broadly criticized at the time of the holding), the district judge is right to point out that Meltwater is, to some extent, profiting from AP’s labor, even though generally speaking news reporting falls within fair use.

  5. Mike Dearington says:

    Interesting post, Samantha! As you mentioned, other originating news companies are surely pleased with this decision (and the New York Times Co. and others even filed an amicus brief to the district court). It also looks like there are many other interested parties, as this decision has already been viewed over thirty thousand times on Scribd!