Is Clipping Articles Fair Use? U.S. Court Says No

Pete Pachal2013-03-25 18:14:15 UTC

The term "fair use" gets thrown around a lot in copyright cases, and it refers to an exception to copyright law that allows for the publication of portions or derivations of a copyrighted work — without the permission of the original creator. On the web, fair use has been used to defend aggregators such as Google News, since they take portions of articles to create a service.

Does that label also apply to a service that does a similar thing, but for a newsletter? A U.S. court recently said it doesn't.

As paidContent describes, a federal court ruled that Meltwater, a Norwegian company that does "news and social media monitoring" was violating copyright with its newsletter service. Meltwater's service scans articles for keywords, then takes the headline, the first paragraph or "lede," and the parts of the story where the keyword appears.

The Associated Press sued Meltwater, saying it was violating the AP's copyright on the articles, and that it needed to purchase a license to serve up its content in this way. Meltwater defended its actions under copyright's fair-use doctrine, saying its newsletter service was doing basically the same thing that Google does every second of every day.

Heavy hitters took sides. The Electronic Frontier Federation backed Meltwater, warning that if the AP was successful in its claim, it would have a chilling effect on innovation and free expression. Meanwhile, The New York Times and others sided with the AP, saying Meltwater was a "free-rider" operating a "wholesale copying and redistribution" service.

U.S. District Judge Denise Cote riled in favor of the AP. While on first blush Meltwater's service doesn't appear to be all that different from Google News, it's all in the details.

The law around fair use inherently allows for flexibility, but whether or not a particular complaint amounts to a violation is dependent on four factors: the purpose of the duplicated content, the nature of the copyrighted work, how much of the original was copied, and the effect on the market.

The first factor — the purpose of the use — is often the most important factor in a fair-use case, and it was so here. In her 90-page ruling, the judge rejected Meltwater's claim that its service was like a search engine, which passes the fair-use test because creating a page with several links changes the context essentially "transforms" the copyrighted work into a different kind of service.

That wasn't the case with Meltwater, the judge said, for three reasons. First, the service acted more like a competitor to the AP than a facilitator, she wrote, pointing to the newsletter's click-through rates on articles, which were less than one-tenth of 1%. By comparison, she said Google News users clicked through 56% of the time, citing a 2009 report from Outsell.

Second, by reproducing an article's lede and keyword sentences in their entirety, Meltwater was essentially taking the "heart" of the stories it was excerpting, rather than serving as a teaser, she wrote. Finally, she believed the newsletter was taking more of the articles than was needed for a "search engine" type of service.

The ruling will certainly be appealed, but it could serve as a precedent in determining where the line is for services that depend on excerpting third-party content.

What's your take? Should Meltwater have to pay the AP to clip portions of its articles for a newsletter, or should fair use apply here? Vote in our poll, then tell us your reasoning in the comments.

Image via iStockphoto, tomacco

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