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.

  1. Debbie
    February 27, 2012

    What was the “significant portion”? Was it more than a 1- or 2-sentence summary?

    1. Brian
      February 27, 2012

      Debbie, the complaint filed by the AP is 41 pages long.  We are

      relying on court documents (public records) and the case has a long way
      to go. The AP never specified in its complaint on what percentage or
      amount it considers as an unlawful copying of a “significant portion” of
      an AP feed. However, the complaint gave some examples. In one
      allegation, the AP claimed that Meltwater copied more than 30% of
      certain articles. The complaint also included exhibits showing three to
      four sentences being copied out of a feed; however, these examples
      involved short feeds made up of about 5 to 8 sentences. The AP also
      alleged that Meltwater archived entire AP articles, so the AP’s claim is
      not limited only to copying of excerpts. More details will get flushed
      out as the AP’s claims get closer to trial. Meltwater has yet to file a
      formal response (an answer) to the AP’s complaint in the lawsuit, which
      at the time will give a better perspective of Meltwater’s position on
      the matter.

      For purposes of “fair use” or copyright infringement, there is no no
      bright line rule that specifically states how many sentences, how many
      seconds of a video or song, or what percentage of a work, must be copied
      before it would constitute copyright infringement. It depends on the
      work and whether the portion of the work copied contained enough
      “expression” to deserves copyright protection.  That’s decided in court.
      Please keep in mind this reply and the article does not give specific
      legal advice. You should consult with your counsel to address your
      specific needs or concerns for any content you produce.

  2. Yong
    February 28, 2012

    We have a web site that provides the  Chinese version abstraction of local news.  The abstraction is usually 100 to 200 characters. We always have a link back to the original sources of the full stories. This web site was originally a student maintained but when kids have more home works when they entered into high school, we are thinking to make it a for-profit one by hiring translators and keep the content updated regularly. Should say that the audiences to our web site might never reach the original news web site if not lead in from our web site . Do you have any suggestions to us? Should we go ahead and get permission from all source providers? Thanks in advance,

    1. Brian
      February 29, 2012

      Yong, unfortunately you are seeking legal advice, which we can’t give on Street Fight. You site should consult its counsel. There have been cases where abstracts were found infringing. Getting permission is always the best option. Some properties even allow abstracts if they know you may be driving traffic to them. 

  3. Jack kelly
    March 1, 2012

    Brian…good website and thoughtful content but…areyou really set on this color theme? Personally I find the green in the text a bit garish and not easy to read.

    1. Brian
      March 5, 2012

      Jack, that you for your kind comment on the article. As to the color, let me upstream it to the publishers. Best, Brian

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Street Fight Daily: 02.27.12