• by Tom Hespos , September 3, 2004

What do you do when another company publicizes the promotional material you use to sell your product, putting it in front of thousands of people in your target audience over the course of several years, helping to build your business at no cost to you? You sue them, of course.

Or at least you do if you're JupiterResearch. For a few weeks now, we've been hearing about copyright infringement lawsuits Jupiter has filed both here in the United States and abroad against eMarketer, a Web site that is often the first stop for people in the online marketing business when they're looking for market research, analysis, and statistics. If you're reading this column, you've probably visited eMarketer at least once, since the site has a knack for pulling together research information from various authorities in the industry and we tend to need this kind of stuff for marketing plans and such. If you're a regular visitor to the site, you know that eMarketer puts together analysis based on statistics from a variety of research companies and analysts, and that this information is sourced appropriately.

After years of having its statistics featured in eMarketer reports that reach boatloads of marketing folks, JupiterResearch apparently doesn't want eMarketer to do this anymore. The problem for Jupiter is that there may not be anything they can do about it.

"eMarketer gathers all of its data from public sources, including search engines, company web sites, trade journals, and published news reports," said Jennifer Kronstain, eMarketer's director of communications in a statement she sent me in an e-mail last week. But what about information that Jupiter sells to its customers? You know - the kind of stuff you need a password to get.

"We very well may quote data that exists to their subscribers as part of a report," Kronstain said, "however that data would have had to been released to the public in some way - i.e. as part of PowerPoint presentations, press releases, company Web sites, seminars, blogs, etc. - for us to have seen it. Our reports are based on information available to anyone who knows how to use Google. We absolutely deny stealing anything."

So if what Kronstain says is accurate, then Jupiter is suing eMarketer for using the data that it's already placed in the public domain - the data and stats that Jupiter uses to promote it and its products in the marketplace. Don't people pay PR agencies to do this?

The Jupiter lawsuit seems to be silly not only because Jupiter is biting a hand that feeds it, but also because data isn't copyrightable.

"The law is clear," said Kronstain in her e-mail. "[F]acts, including Jupiter's numbers, which are expressed as facts, are not copyrightable. Further, the original text written by our team of analysts based upon facts they gather and upon their own individual analysis is likewise in no way a violation of any copyrights."

One might also wonder why Jupiter seems to have an issue with the way eMarketer does business now - eMarketer has been doing this for seven years. Why has it become an issue only recently?

If you ask me, eMarketer is doing Jupiter a service by publicizing its facts and figures. How many of Jupiter's customers have become customers because they saw Jupiter numbers in an eMarketer report? Why bite the hand that feeds you?