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:
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