AP’s Meltwater Suit Illustrates Risks for Hyperlocal Aggregators

A new lawsuit filed by the Associated Press against Meltwater News Service this month is a chilling reminder that hyperlocal publishers need to use discretion if they aggregate content created by other sites and publishers. The AP brought its lawsuit against Meltwater in New York, claiming that the news clipping service willfully exploited and copied AP’s and other publishers’ news articles for profit without paying for the content.

In court documents, the AP alleges that Meltwater “copies and delivers to paying customers substantial infringing excerpts from AP stories and other published news stories based on keywords selected by the subscriber.” AP’s complaint points out the Meltwater does not license or pay for the content that it syndicates to its subscribers, unlike Google News, Yahoo News, or AOL, who the AP contends have negotiated arrangements with the AP.

One of the AP’s primary complaints is that Meltwater excerpts a “sufficient” amount of AP content and provides a system for its customers to store and retrieve the full text of AP articles offered through Meltwater. The AP also accused Meltwater of misappropriating AP’s “Hot News” content, by taking a “free-ride on AP’s significant investments in gathering and reporting accurate, timely news, including breaking news,” a legal theory still recognized in New York, but which efficacy has been getting mixed results lately.

“Meltwater News is a parasitic distribution service that competes directly with traditional news sources without paying license fees to cover the costs of creating those stories,” said Tom Curley, president and CEO of The Associated Press. In a statement released on February 14, 2012, Curley added:  “It has a significant negative impact on the ability of AP to continue providing the high-quality news reports on which the public relies.” Meltwater was unavailable for comment.

The Associated Press has been on the warpath against unauthorized reuse of its content by online publishers since 2009. In April 2009, AP Chairman Dean Singleton announced that the AP would “pursue legal and legislative actions” to protect news content from misappropriation online.

The AP lawsuit is a reminder of the fine line between linking to content and copying a significant portion of someone else’s content. Copyright law protects original works of authorship fixed in a tangible medium of expression. Copyright law doesn’t protect raw facts; however, it protects the way an author expresses such facts. The copyright owner has exclusive right to reproduce, display and distribute the work.  A hyperlocal publisher should not take for granted these rights simply because content appears on another site.

Hyperlocals have options. The reliable approach is to obtain rights to use content, such as, by acquiring the content through licensing agreements (but it may require a fee) or through alternative approaches, such as by exchanging content through content exchange or web linking agreements.  For example, New America Media offers a news exchange program.

Copyright law provides one exception in which a publisher can use an excerpt of other content without permission. The exception is known as “fair use,” which permits publishers to excerpt a small portion of content so long as it is used for criticism, comment, news reporting, teaching, scholarship or research. Hyperlocals should use this approach cautiously. Whether the use of content is “fair use” requires the consideration of the following factors:

1. The purpose of the use. “Fair use” tips in favor of non-profit educational use, but less for commercial use of content.
2. The nature of the copyrighted work. There’s less protection for fair use if pure expression is copied, such as fictional writing.
3. The amount of the worked copied. That means, the less copied, the better.
4. The effect that the copy has on the market value of the original work. Fair use may not apply if the amount of the work copied competes with the market value of the original work.

The moral of this story for hyperlocals is that they should either get rights to the content, or limit the use of third party content for fair use commentary that does not involve a wholesale copy of the work. When in doubt, hyperlocals should check with their counsel before using content of others.

Please keep in mind this article provides general information and it not intended to provide legal advice.

Brian Dengler is an attorney with Vorys Legal Counsel and journalist who covers legal issues in eMedia. He is a former vice-president of AOL, Inc., a former newspaperman, and an EMMY-winning TV journalist. He teaches new media issues as an adjunct at Kent State University and formerly at Otterbein University.