Jupitermedia Tuesday said it sent cease and desist letters to online news and data aggregator eMarketer, ordering the company to discontinue using research from Jupitermedia in eMarketer reports sold
in France and the UK. The two companies are already embroiled in a similar lawsuit in the United States and some observers believe the outcome could help determine what constitutes "fair use" of data
that is publicly available on the Internet.
Jupitermedia filed legal action against eMarketer in the U.S. District Court for the Southern District of New York on May 13, alleging copyright and
trademark infringement. Jupitermeda requests that eMarketer cease its acts and pay any monetary damages, which will be determined at the end of the trial.
Alan Meckler, chairman and CEO of
Jupitermedia, said the company is suing eMarketer in France and the UK because Jupiter and eMarketer reports are also used by companies overseas. He said he decided to issue a press statement about
the case because Jupitermedia had been "bombarded by people" asking about the status of the first case. The company did not issue a release for that case, but the legal action was one of the worst
kept secrets in online research circles, after Meckler reported it on his personal blog.
In Tuesday's press statement, Jupitermedia claimed eMarketer is not authorized to access and republish
reports from its research unit, JupiterResearch, nor is it authorized to distribute JupiterResearch data, which are only available to paying customers.
That's not the view of eMarketer's legal
counsel. Drew Patrick, of New York law firm Frankfurt Kurnit Klein & Selz, PC, asserted that Jupiter produces data, and "data is not copyrightable, because it's public domain." He said that renders
the information fact, according to the law, and added that because JupiterResearch's data is readily available to anyone on the Web, it cannot be characterized as expression, which is the only thing
that would protect it under copyright law.
However, Jupiter's Meckler alleged there were several instances where eMarketer obtained Jupiter research that was not available in the public domain.
Furthermore, he noted that eMarketer has violated the company's trademark by either misinterpreting or publishing outdated Jupitermedia data. "All I asked is that they cease and desist using our data
and our name-we could have ended this by now," Meckler said. "But they won't."
Meckler claimed that since Jupitermedia filed its suit, other companies whose data eMarketer uses in its research
compilations have contacted him and expressed an interest in the outcome of the suit.
"They can't publish what we do," an executive at another research company told MediaDailyNews,
emphasizing that the research isn't free. Forrester Research, GartnerG2, the Yankee group, the Kelsey Group, comScore MediaMetrix, and Nielsen//NetRatings are examples of other market research firms
whose data is used by eMarketer.
The case is interesting, because it could help determine what constitutes "fair use" of information publicly available on the Internet, as well as "permissible
use" of data distributed to third parties - such as news outlets like MediaDailyNews -- by companies like eMarketer.
In recent years, Nielsen Media Research, who's TV ratings data is some
of the most ubiquitously cited research in the media industry, has taken a strong stand on who can republish its data, when, where and how much of it. While some of that authorization is subject to
interpretation, Nielsen has explicitly said it does not want any sources - either clients, or journalists - streaming its entire database online.
To be sure, many research suppliers like having
their data utilized by eMarketer and consider a form of promotion, as well as an endorsement of its credibility. MediaPost, the publisher of MediaDailyNews, for example, routinely authorizes
use of its data in eMarketer's reports.
In response to Jupitermedia's allegations, eMarketer issued a statement claiming it has been "aggregating and analyzing publicly available factual
information for seven years." The company said that it saves its customers time and money synthesizing and analyzing data from more than 1,700 sources, which includes search engines, company Web
sites, trade journals and published news reports.
It also said that Jupiter's numbers are expressed as facts and are therefore not copyrightable. eMarketer further claimed its team of analysts
write reports "based on the facts they gather and upon their own individual analysis," which the company said also does not violate any copyright.
eMarketer's legal counsel Patrick added that
Jupitermedia also extrapolates data from outside sources, synthesizes, and publishes data in essentially the same way eMarketer does. He underlined the two main issues that the U.S. District Court
judge has to resolve: 1) Does Jupitermedia have any proprietary interest in data that appears on eMarketer's Web site; and 2) does that constitute copyright infringement, or is it fair use?
Doug
Wood, executive partner of law firm Reed Smith Hall Dickler said, "It's a toss-up; there's a little of everything in this case," but noted that it is by no means unique. He mentioned there have been
several similar cases throughout the years, but the outcomes have gone both ways. "The Internet does throw a bit of a wrinkle into the analysis," Wood said. "Difficult, time-consuming research that
could have taken a lifetime to complete can now be accomplished in an hour."
Wood also noted that, "judges don't like people who take the fruit of other people's labors." On the other hand, he
acknowledged that eMarketer could argue that it interprets Jupiter data and turns it into another form of expression. "This is not a black letter law case," Wood said. "Questions of intellectual
property, unfair competition, and unjust enrichment are always far more complex." He added that the court will most likely make its ruling based on the economic equities involved.