NY judge says running a search engine for news is a copyright violation

A NY federal judge handed down a terrible ruling in AP vs Meltwater, which turned on whether providing a search-engine for newswire articles that showed the first sentence or two of the article was fair use. The Electronic Frontier Foundation's Corynne McSherry sums up many of the ways in which this judge got it wrong. We can only hope for an appeal and a better ruling.

Second, the court implicitly adopted AP’s dangerous “heart of the work” theory. AP contended that sharing excerpts of a news article must weigh against fair use if those excerpts contain the lede. The court stressed that the lede is “consistently important” and takes “significant journalistic skill to craft.” But that is beside the point – there is no extra protection because something is extra difficult. More important to the fair use analysis is the fact that (1) is primarily factual; and (2) contains precisely the information the user wishes to make known to others. As we explained in our amicus brief, this case illustrates why the heart of the work doctrine does not mesh well with highly factual, published, news articles. When it comes to news articles, an excerpt that is shared will very often be the most “important” aspect of the work – but that importance will derive from the uncopyrightable factual content, not the expression. It is not the “heart of the work,” but a piece of the factual skeleton upon which the expression hangs.

AP v. Meltwater: Disappointing Ruling for News Search

• [Gloomingdale]

  I think calling Meltwater a “search engine for news” is a bit of a misstatement. Also much of the court’s analysis focused on the fact that much more than “the first sentence or two” were reproduced by Meltwater. 

• [Gloomingdale]

  Still, much of the ruling seemed like sweat of the brow type arguments being brought up again by AP and I think Meltwater’s use was transformative. 

• [chorizo]

  Would news services prefer if their articles didn’t show up in search results at all?  Anything that is just a non-creative statement of fact can’t be copyrighted, even if the news source is the first to publish the fact.

• [oasisob1]

  Google and Yahoo are next? Bing, too?

• [James Agenbroad]

  Certainly Feist made “sweat of the brow,” irrelevant in copyright.  But at some level an argument can be made that the amount of effort expended in crafting the lede means that the expression IS more than the sum of it’s facts. 

  • [Sagodjur]

    The creativity required to craft the lede is why it qualifies for copyright. It also has nothing to do with a fair use analysis.

• [timquinn]

  Perhaps newspapers could create a second version of an article that is devoid of any copyrightable essence and is strictly the facts that could be fairly used without infringing. I write this as an absurdly unachievable goal, but it looks now like an argument that might past muster with this judge.

  • [James Agenbroad]

    Or if you wanted to post the facts, you could simply extract them from the newspaper article and express them in your own way.  That would certainly be okay.  (despite this some corporation might try to sue you anyway, though)

• [daveistrad]

  The judge in this case, Hon. Denise Cote, is brilliant and very experienced. She is also almost 70 years old, and not someone I believe to be very tech savvy. 

• [jimkirk]

  “More important to the fair use analysis is the fact that (1) is primarily factual”  

  That assumption about “primarily factual” may not be true…

  http://www.projectcensored.org/top-stories/articles/11-the-media-can-legally-lie/

• [Sagodjur]

  This is good news though! This means that my news service search engine that focuses only on excerpting the most useless aspects of news articles should not be challenged by any of the publications from which I get my results.

  Also, check out today’s top story: “Mr. Smith could not be reached for comment.”

• [Christian Buggedei]

  the worst thing? Germany just actually passed a law stating just this. :(

• [Kaleberg]

  It sounds like it’s time for a mechanical paraphrase approach. Sure the resulting excerpts will be stilted, as if the news were written by non-native speakers or functional illiterates, but after a while everyone will think that’s just the way real journalists at AP write.

• [bill_mcgonigle]

  Well, of course it’s a copyright violation.  The leeway is whether or not fair use is a valid defense, even for Google.

  Maybe enforcing copyright strongly will show people how backwards and stupid it really is.

  • [Pjay (Patti) Pender]

    No, it’s not. It’s obviously fair use. and copyright isn’t a stupid concept, it’s been corrupted over time by some…less than scrupulous corporate entities (I’m looking at you, Disney). 

    • [RElgin]

      You are so right about Disney.  They have single-handedly undermined copyright in America and have become a notable example of a corrupted dream.

  • [Gilbert Wham]

    Whoa.  That’s one fucking big ‘maybe’ right there…

• [Pjay (Patti) Pender]

  How do news organizations benefit if their material is not included in search engines? I already ignore stories I see that link to paywalled news sources and simply search for a source of the information that isn’t going to make me jump through hoops for the story. Do more news sources want to be ignored by the majority of people? I just don’t see how this benefits them.

  • [Florian Bösch]

    It doesn’t benefit them. The traditional news services are losing their business, and they don’t know what to do. They work under this weird idea that:

    1) Prevent people linking to them
    2) …
    3) Profit

• [leimodnu]

  Not a search engine — its what was called in the old days a clipping service which always paid license fees to the news organizations.  Meltwater does not pay this fee.  They probably should.

• [donovan acree]

  And as a result, the people become less informed. Well done courts. Well done.