Can AP's Copyright Claims Hold (Melt)water?

By now you might have heard about the lawsuit that the Associated Press filed against on-demand software company Meltwater News. AP has been critical of aggregators in the past, and decided to file suit against this specific party, alleging copyright infringement, removal of copyright management information, and (drumroll, please…) hot news misappropriation. Yes indeed, the tort made famous by the 1918 Supreme Court case INS v. AP – and about which we here just love to write – refuses to die. Meltwater News, according to the company's website, allows users to subscribe to a service whereby Meltwater will continually search its corpus of 160,000 cached websites for references to particular keywords (presumably, keywords central to the client's business) and provide excerpts from articles using those keywords, along with a link to the original articles. The service also allows the user to create his or her own newsletters by combining these links with text written by the user. I've been thinking of it as a hybrid of Google Alerts, Wordpress, and Constant Contact, merged into one interface. I would love to address all of the issues raised by the complaint – the claims for removal of copyright management information under 17 U.S.C. § 1202(b) and "hot news" misappropriation under New York common law are fascinating and deserve blog posts of their own – but for the sake of keeping this post under 10,000 words I will focus on the claims of copyright infringement. As a quick refresher: Copyright gives authors of creative works the exclusive right to, among other things, reproduce, distribute, and create derivative works of their writings, subject to a variety of carve-outs and limitations. The most important limitation for this case is the doctrine of fair use. Fair use is an equitable defense which allows a judge to decide based on the facts before the court that the interests of the public would be better served if a copyright owner is not allowed to assert exclusive control of a work. Following the adoption of the fair use doctrine in 17 U.S.C. § 107, courts tend to examine a list of four factors, but the two most important for our purposes are the first and last, which are: the purpose of the use, including whether the use is commercial or noncommercial and how "transformative" the use is compared to the original; and the effect of the use on the market for the original work, including any reasonable secondary markets. Fair use defies easy answers. It is always a highly fact-sensitive inquiry and judges are given wide discretion to give weight to the factors that they think are most important in a given instance. That said, a recent study by Neil Netanel suggests that courts currently are particularly fond of the first factor and its "transformativeness" inquiry. AP, in its complaint, alleges that its copyrights have been violated in three principal ways: direct copying and excerpting by Meltwater as part of its media monitoring service; Meltwater's "providing the means" for users to copy and to distribute whole articles via its website; and Meltwater's translation service. Below, I discuss each of these alleged forms of infringement, with a particular eye to fair use. 1. Direct Copying I don't think Meltwater would dispute that they make a copy of all of these articles, although perhaps not a copy which can be easily read by people as opposed to machines. Based on my understanding, they would have to in order to create a searchable database of content, and in any event "copies" are defined in the Copyright Act to include those viewable "with the aid of a machine or device." I suspect that the fight, therefore, will be whether Meltwater's actions should be considered a fair use or not. Our friends over at the Nieman Lab have already highlighted a noteworthy point about the fair use analysis here: there are two blazed trails concerning this sort of activity in fair use caselaw, which point in opposite directions. A handful of cases – including Pacific & Southern Co. v. Duncan TV and Los Angeles News Service v. Tullo – have examined the fair use defense as applied to commercial news clipping services, and found that such services generally are not engaged in fair use when taking excerpts from television, radio, and print journalism. On the other side are the search engine cases – cases like Field v. Google and Perfect 10 v. Amazon – which hold that even though search engines by their nature make whole copies of originals and are usually operated for commercial gain, the overwhelming public interest in having search engines exist and the lack of a demonstrable market harm for the original website points toward a finding of fair use. Based upon the AP's complaint and the parties' public statements, the parties appear to be arguing along these pre-established lines. But a fair use examination shouldn't rely solely on words like "clipping service" and "search engine" to shortcut a detailed analysis. The challenge in do