Late last week, U.S. District Judge Denise Cote ruled that the Associated Press is “entitled to summary judgment on its claim that Meltwater has engaged in copyright infringement and that Meltwater’s copying is not protected by the fair use doctrine.”
While many observers fret that the ruling presents peril for search engines (and services like Google News in particular), Judge Cote’s opinion appears to be largely aimed at Meltwater’s commercial nature, and her view that Meltwater essentially resold AP’s content unaltered, without paying to license that content.
Largely relying the first prong of the ‘fair use test,’ which holds that the court’s fair use evaluation is guided in part by “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” and the question of whether Meltwater’s use of the AP content at issue was “transformative,” Judge Cote concluded that Meltwater’s use failed the fair use test.
“Neither the purpose nor use of the Meltwater News Reports, nor its excerpts from the Registered Articles in the News Reports, is transformative,” Cote wrote in her opinion. “Meltwater uses its computer programs to automatically capture and republish designated segments of text from news articles, without adding any commentary or insight in its News Reports. Meltwater copies AP content in order to make money directly from the undiluted use of the copyrighted material; this is the central feature of its business model and not an incidental consequence of the use to which it puts the copyrighted material.”
Judge Cote also found that the “examination of the public interest weighs against Meltwater.”
“Investigating and writing about newsworthy events occurring around the globe is an expensive undertaking and enforcement of the copyright laws permits AP to earn the revenue that underwrites that work,” Cote wrote. “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.”
Elizabeth McNamara, a partner from Davis Wright Tremaine who represented the AP in the case, applauded Cote’s decision.
“It’s an important decision that recognizes the critical value and import of the press in the Internet age,” McNamara said, according to FolioMag.com. “For years, Meltwater and others have maintained that news available on the Internet can be freely taken and commercially sold—this decision unequivocally rejects this argument. The court recognizes that Meltwater cannot construct a business model that does little more than free-ride on costly newsgathering.”
Unsurprisingly, the defendants and their supporters see things a little differently than does McNamara.
“We’re disappointed by the court’s decision and we strongly disagree with it,” said Jorn Lyseggen, CEO of Meltwater, according to Reuters. “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.”