• by Wendy Davis  @wendyndavis, January 24, 2013

A trade group for tech companies is warning a federal judge that her decision in a lawsuit by The Associated Press against paid clipping service Meltwater could harm many search companies.

"Indexing of content, including by search engines and other information tools, has become an indispensable component of the Internet landscape," the Computer & Communications Industry Association says in a new friend-of-the-court brief. "This industry cannot operate under the threat of looming litigation from billions of potential plaintiffs."

The organization says it isn't siding with either the AP or Meltwater. But the legal papers filed by the group -- whose members include Google, Facebook and Yahoo -- argue against many of the AP's key theories.

The AP sued Meltwater for copyright infringement last year, alleging that the clipping service unlawfully copies news stories and displays portions of them. But Meltwater says it just 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 one of the key issues in the case -- fair use. Meltwater says it has the right to index news stories and display snippets from them.

To support its argument, Meltwater says that its use of the articles is transformative -- which is one of the factors that courts evaluate when considering fair use issues. Meltwater also says that it has a strong fair-use claim because the AP's articles are "purely factual" and, therefore, granted less copyright protection than more "creative" work.

The CCIA largely sides with Meltwater on those points. "Every court to address the issue has (properly) concluded that, because the reproduction of a work in a search engine has an entirely different purpose than that of the original work ... search engines are transformative uses," the organization argues.

The trade association also contends that the AP's copyright interest in news articles is relatively weak. "The scope of any copyrightable interest AP may have in its articles -- particularly given that they are intensively fact-based -- is extremely narrow," the group says. For that reason, search engines that focus on news are "even stronger candidates" for fair-use protections than other search engines, CCIA says.

Another issue in the case that concerns the CCIA stems from a claim by the AP that Meltwater fails to honor the terms of use on the sites of the AP's media partners. The AP says it makes articles available to newspapers and other companies through license agreements; those contracts require AP's partners to post terms of service that ban the commercial use of the AP's articles.

The lawsuit is pending before U.S. District Court Judge Denise Cote in New York.