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Summary:

How much can news agencies like the AP control their stories on the internet? The New York Times has just weighed in on a critical case that will help determine that.

The New York Times is supporting the Associated Press in a controversial copyright case against Meltwater, a service that monitors the news and reproduces headlines and story summaries for its clients. The case pits major media outlets who invest in news against technology advocates who fear the case will suppress the free flow of information.

This week, the New York Times asked a federal court in New York to file a “friend of the court” brief in support of the AP. The brief, which is also signed by newspaper publishers Gannett and McClatchy and others, asks the court to declare that Meltwater is infringing copyright.

The Times‘ brief argues that Meltwater is “free-riding” on its news collection efforts and that the service should pay for news in the same way it does for rent or electricity. The Times also cites James Madison’s dictum that a democracy needs “popular knowledge” and cites the business plight of newspapers:

It takes no friend-of-the-court brief for the Court to know that the rise ofthe Internet has been highly disruptive to the nation’s news organizations, as their readers and advertisers have migrated to the Web.

The Times also says newspapers’ efforts to replace print revenue with digital income are being undercut by those who scrape their news:

None of these revenue streams can be sustained if news organizations are unable to protect their news reports from the wholesale copying and redistribution by free-riders like Meltwater.

The brief goes on to contrast Meltwater with other services that pay to license news content, and complains that fewer than one percent of Meltwater subscribers click through to the underlying news article; it claims the rate is much higher for services like Google News.

The Times’ intervention is likely to fuel a bitter debate over how far to extend copyright on the internet. Critics of the AP suit, like TechDirt’s Mike Masnick, say the wire service has failed to modernize and is instead trying to shake money out of companies that are essentially search engines.

Meltwater itself claims that it has the right to reproduce headlines and brief snippets of the news under copyright’s fair-use doctrine. It has also filed a counter-claim accusing the AP of libel.

The case also involves influential organizations in the technology space, like the Electronic Frontier Foundation, which has filed a brief in support of Meltwater. Meanwhile, the Google-backed Computer and Communications Industry Association (CCIA) has weighed in to back Meltwater’s claim that it is a search engine.

The outcome of the case is likely to turn largely on how much content Meltwater is taking from the news agencies. In the U.S., there is no copyright in headlines and the fair-use doctrine protects the reproduction of short snippets; the AP and the Times, however, argue that Meltwater is taking the heart of their work and that it is also over-stepping the fair-use line by providing clients with an archiving tool.

The case is further complicated by the AP’s attempt to claim a right to “hot news” — a state law right that largely vanished in the late 20th century, but that news and financial firms are attempting to resurrect. The Times’s brief did not weigh in to support the hot news claim.

The Times’ decision to file in support of AP may have been driven by the arrival of new CEO Mark Thompson who is a Briton. In the U.K. and Europe, news organizations have prevailed against Meltwater — forcing not only Meltwater but also its customers to buy licenses. Critics say such rules will further stagnate Europe’s attempts to digitize the news business, which are already trailing North America by a wide margin.

There is also the question of just how much money news organizations, if they succeed with the U.S. copyright claim, can wring out of Meltwater. My colleague Mathew Ingram suggests the litigation is about a power-play more than money.

You can read the Times filing for yourself here:

NYT Amicus Brief for Meltwater by

(Image by Voronin76 via Shutterstock)

  1. Masnick is a big freeloader himself. While his blog has more original content than others, he’s never, ever supported the hard working artists. He’s just a flack for the billionaires who don’t want to share anything with the people who do the work. That’s why Google was so happy to support his bogus future of journalism conference. Needless to say, it was just a bunch of Google share holders hoping that they could keep the freeloading going as long as possible.

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  2. What is your basis for claiming that “Europe’s attempts to digitize the news business….. are already trailing North America by a wide margin.” ?

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    1. Thanks for your comment, Mark. My remark is subjective but is based on my experiences in Europe where print appears to still be widely prevalent. It’s also based on conversations with journalists in Belgium, Norway and other countries who regularly tell me their publications don’t even have a digital strategy at all. I can also point to EU countries’ repeated efforts to wring copyright royalties from Google to prop up their newspapers.

      Europe has many wonderful news brands. But I think it’s fair to say its digitize efforts are lagging North America.

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      1. I think it’s only fair to say that if you can back it up. Belgium ? Norway ? Hardly European powerhouses. I also do not understand how demanding that search engines pay for piggybacking off content that’s not theirs is somehow contrary to having a digitizing strategy unless what you mean by “digitizing” is giving away your content for free ? Given the brand you work for I assume not ?

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  3. It doesn’t appear as if the difficulty lies in digitizing traditional newspaper content. The difficulty is more likely in monetizing such digitization efforts and it doesn’t sound as if North American newspapers businesses have found a way to effectively monetize their efforts digitally either. So perhaps not digitizing is a business decision to protect their businesses, albeit a non-proactive delay tactic?

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  4. Mark, I can add France to the mix — Le Monde and Le Figaro are not exactly innovative on the digital front. The UK, Ireland and parts of eastern Europe appear further along.

    godzilla, yes, the issue is monetization. You’re right that it’s a logical business decision to protect print earnings — but, as you point out, this is a delay tactic not a strategy.

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