AP Wins Key Copyright Action: Reselling News Excerpts from Internet Not a Fair Use

by Davis Wright Tremaine LLP

On March 21, 2013, the U.S. District Court for the Southern District of New York issued a sweeping decision in favor of DWT’s client, The Associated Press, in its copyright infringement suit against Meltwater News, an online media monitoring service. For years, Meltwater and other companies have maintained that content published and freely available on the Internet can be scraped, compiled, and commercially re-sold under the guise of fair use. This decision seriously undermines that proposition and recognizes that Meltwater cannot “free ride on the costly news gathering and coverage work performed by other organizations.”

AP filed suit against Meltwater in February 2012, accusing it of copyright infringement and related claims. Meltwater is a commercial media-monitoring service that provides its paying customers with daily “News Reports” containing excerpts—include the headline and lede—from news articles scraped from the Internet on topics selected by the customer. After a period of expedited discovery, the parties submitted summary judgment motions on Meltwater’s liability for copyright infringement. Meltwater argued that it operated as an Internet search engine, and that its use of AP content was therefore protected by the fair use doctrine. Today’s opinion resoundingly rejected that argument.

One of the significant legal questions presented by this case was whether Meltwater’s use of news content placed it in a line of precedents about traditional clipping services—which have not been treated by courts as a fair use—or whether it was more fairly considered a “search engine” akin to uses approved by the Ninth Circuit in Perfect 10 v. Amazon and Kelly v. Arriba. In her 91-page opinion, U.S. District Judge Denise L. Cote carefully examined the nature of Meltwater’s use of news content in its Meltwater News service and found Meltwater to be “a classic news clipping service,” whose use of content was neither transformative nor fair. As the Court noted, “Meltwater copies AP content in order to make money directly from the undiluted use of the copyrighted material; this is the central feature of its business model and not an incidental consequence of the use to which it puts the copyrighted material.” Furthermore, the Court found that Meltwater’s use harmed the market for AP’s content: “By refusing to pay a licensing fee to AP, Meltwater not only deprives AP of a licensing fee in an established market for AP’s work, but also cheapens the value of AP’s work by competing with companies that do pay a licensing fee to use AP content in the way that Meltwater does.”

The Court also repeatedly rejected Meltwater’s argument that its use of search technology renders its use transformative, asserting that “[e]xploitation of search engine technology to gather content does not answer the question of whether the business itself functions as a search engine.” As the Court explained, “Using the mechanics of search engines to scrape material from the Internet and provide it to consumers in response to their search requests does not immunize a defendant from the standards of conduct imposed by law through the Copyright Act, including the statutory embodiment of the fair use defense.”

The Court also rejected Meltwater’s additional defenses to copyright infringement based on implied license, estoppel, laches, and copyright misuse. In support of its implied license defense, Meltwater had argued that by not employing robots.txt protocols to affirmatively block Meltwater—and requiring that its members and licensees do the same—AP had granted Meltwater an implied license to scrape and re-sell AP content published on the Internet, regardless of any copyright notices or terms of use explicitly limiting commercial use of AP content. The Court rejected this argument, noting that it would impermissibly shift the burden to copyright holders to affirmatively police the use of their content, rather than requiring infringing parties to show that content was properly used.

The case generated substantial interest from amici, who recognized the potential impact of this decision on the media industry. A consortium of news organizations—including The New York Times, The Washington Post, and Gannett—filed an amicus brief in support of AP, while the Electronic Frontier Foundation and Public Knowledge submitted a brief in support of Meltwater. The Computer & Communications Industry Association submitted an amicus brief, purportedly in support of neither party, asking the Court to take into account the effect of its ruling on the operation of “legitimate online services.” In its decision, the Court acknowledged the important public interest issues at stake. Noting a “strong public interest” in preserving efficient access to information that was complementary to—not in tension with—the important public interest in news reporting, the Court found that Meltwater’s unlicensed commercial use of AP content did not fit within this paradigm. At the same time, the Court recognized the impact of unlicensed commercial use on the ability of news organizations like AP to continue their important societal role of informing the public: “Investigating and writing about newsworthy events occurring around the globe is an expensive undertaking and enforcement of the copyright laws permits AP to earn the revenue that underwrites that work. Permitting Meltwater to take the fruit of AP’s labor for its own profit, without compensating AP, injures AP’s ability to perform this essential function of democracy.”


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Davis Wright Tremaine LLP | Attorney Advertising

Written by:

Davis Wright Tremaine LLP

Davis Wright Tremaine LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.