Meltwater's "parasitical behavior" poses a threat to news organizations, The New York Times Co. says in new court papers.
The NYT and other news organizations make that argument in a friend-of-the-court brief backing The Associated Press in its copyright lawsuit against the paid clipping service Meltwater. The newspapers are asking U.S. District Court Judge Denise Cote in New York to reject Meltwater's argument that it has a fair use right to draw on the AP's content.
"If the massive, systematic copying of expression engaged in by Meltwater is held to be fair use, the AP (and others) would lose not only the revenues that Meltwater and others of its ilk should have been paying, but also the revenue that other media monitoring services and aggregators have been and are paying for licenses," the news organizations argue.
Groups signing on to the brief include Advance Publications, Gannett, McClatchy and the Newspaper Association of America.
The AP sued Meltwater for copyright infringement last year, alleging that the clipping service unlawfully copies news stories and displays portions of them to its customers. But Meltwater says it merely offers a search engine that enables users to monitor and research information that's available across the Web.
Meltwater and the AP each recently filed court papers seeking a ruling on the key issue in the lawsuit -- fair use. Meltwater says it has the right to index news stories and display snippets from them, while the AP disagrees.
The Computer & Communications Industry Association, a trade group for tech companies, recently weighed in on Meltwater's side. The CCIA argues that a ruling in favor of the AP could harm many search engines.
But the news organizations counter that Meltwater shouldn't be considered a search engine, equivalent to Google or Bing. "No authority is cited that categorizes as a 'search engine' a closed-end, commercial content delivery business like Meltwater (whose value proposition is based on selling to its paying customers, at a lower price, the very thing a copyright owner suing for infringement is already selling)," they argue.
The news organizations also ask Cote to reject Meltwater's argument that its use of the AP's articles is transformative -- which is one of the factors that courts evaluate when deciding fair use. "Meltwater's News Reports lack any transformative quality. Meltwater does not employ abstractors, but instead uses the AP's own expression, relying on technology to compile its reports automatically," the news groups argue.
The NYT and other organizations also dispute the argument that a ruling against Meltwater would cripple innovation, noting that other companies like LexisNexis, Huffington Post and Factiva currently pay licensing fees. "There is no evidence that requiring Meltwater to pay a licensing fee, or stop using the AP's content, would have any impact on technological innovation," the news companies argue.