Copyright suit pits Fair Use against unlicensed distribution

Digital civil rights groups asked a federal court in New York Friday to reject what they call an attempt by the Associated Press (AP) to restrict Fair Use of content on the Internet.

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"If adopted by this or any other court, this view would sharply curtail the essential role fair use plays in facilitating online innovation and expression, restricting the use and development of services that allow users to find, organize, and share public information, services that depend on making intermediate copies, and even personal consumer uses such as time-shifting," argued a "friend of the court" brief filed by the Electronic Frontier Foundation (EFF), Public Knowledge and the Stanford Law School Center for Internet & Society.

The brief was submitted in a lawsuit between the AP wire service and news clipping service Meltwater of Norway.

Service called 'parasite'

When the AP filed the lawsuit against Meltwater in February 2012, the wire news service's president and CEO Tom Curley called Meltwater "a parasitic distribution service that competes directly with traditional news sources without paying license fees to cover the costs of creating those stories."

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In its complaint against Meltwater, the AP states, "Meltwater has built its business on the willful exploitation and copying of the AP's and other publishers' news articles for profit."

"Through its Meltwater News service, 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," the complaint says. "Meltwater then offers its customers the ability to store these excerpts and even full text articles in a customer archive housed on Meltwater's server and to further distribute these materials."

What particularly peeves the AP is that Meltwater resells AP content at cut-rate prices. That's enabled Meltwater to poach some of the AP's clients, like the U.S. Department of Homeland Security, the wire service noted.

Walking the legal line

In the AP's attack on Meltwater, Fair Use—the legal doctrine that allows for the use of copyrighted material for purposes of commentary, criticism, or other transformative uses—will be collateral damage, the digital rights groups argue. That's because the AP wants the court to accept a narrower definition of Fair Use than what's been accepted in the past.

Fair Use of copyrighted material requires that a use be transformative. For example, a paragraph from a news story might be used to describe a link to that news story. The AP is arguing that in order to consider a use transformative, it must also have an "expressive" element—something that alters the original content with a new expressive meaning or message.

"There are lots of examples of important fair uses that wouldn't fit under AP's cramped definition of a 'transformative' use," EFF Senior Staff Attorney Kurt Opsahl said in a statement. "Time-shifting—like what you do when you record something on your DVR to watch later—isn't 'expressive,' but courts have found it a clear Fair Use."

The AP has had an uneasy relationship with Internet news aggregators for years. In 2009, for instance, it introduced a program to track its content online so it could pursue copyright violators. The AP also locked horns with Yahoo and Google over indexing and linking to the wire service's news, but those issues evaporated after the search services cut licensing deals with the AP.

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