UK Judge: Search is Theft

paidContent UK’s NLA Ruling Summary: How PRs Break Copyright Law Online offers the highlights of a 148-paragraph ruling by the British High Court “that PRs who subscribe to paid news monitors are breaking UK law by effectively copying a substantial part of online news articles.”

The product in question is Meltwater News, an online global media monitoring service that allows subscribers to track “keywords, phrases, and topics in over 130,000 sources from over 190 countries and 100 languages, monitored consistently throughout the day.”

The judge argues that in reprinting publications’ headlines or summaries of longer than 256 characters, the service is “stealing” the publishers’ content, even though Meltwater quite naturally provides links so users who are interested in a given piece of content can click through to the original. Since these summaries and headlines are cached on my computer, as an end-user I am complicit in the theft of content I didn’t pay for, says the judge.

If this ruling sticks, and if it ripples out, it will cripple or kill existing and emerging services that help people find content.

11 thoughts on “UK Judge: Search is Theft

  1. I hate reading legalese, but I’ve re-read the excerpts twice, and it appears that the article seems a bit… sensational?

    The case is obviously discussing the Meltwater news product, which is basically, as far as I understand it, a marketing “tracker” that mimics the behavior of a news aggregator – i.e. it copies text from actual news sites, and republishes them on the app, and provides analytic services.

    While the judges description of the act of copying appears a little fuzzy in logic (cache = copy? hmmm…), it appears to me as if it’s being taken out of context. I believe the judge is merely establishing that the Meltwater product is actively and physically enabling the user to make a copy, but unlike Google, which is free (a main point) and only displays an excerpt, the Meltwater product downloads the entire content without a guarantee that the viewer will be redirected to the source of the text – e.g. the publisher’s site.

    These paragraphs are the ones (IMO) that say the most about the case:

    “The Publishers assert that Meltwater News prevents End Users from using the Publishers’ websites because it avoids the need to click through, whereas PRCA says that the Meltwater News service brings more people to the sites through affording them a hyperlink to a site which they would not necessarily otherwise access.”

    Basically, the news publishers are complaining that Meltwater is taking eyeballs away from their site (because the content can be accessed from the Meltwater product), whereas Meltwater is saying they’re providing the eyeballs through a link to the source.

    “The Publishers have devoted very substantial resources in developing those websites and to the selection, arrangement and presentation of the material on them. Meltwater is making millions of pounds from its own activities which include ‘scraping’ the Publishers’ websites for information for its own commercial gain.”

    Simply put: the publishers are paying for cost of the news, but Meltwater is stealing their eyeballs.

    Basically, just like a news aggregator.

  2. What are the implications for RSS readers, which do the same thing (but with the publisher’s complicity)?

    What are the implications for Flipboard, an extremely popular iPad app that publishes large chunks of user-selected publications (but not the full articles)?

    What are the implications for Instapaper, which allows users to save a publisher’s content for later reading? (Later reading which is also easier on the eyes, and ad-free.)

  3. Maybe their 19 century whigs are overheating their brains and clouding their judgement…

    Now that the OLPC (One laptop per child) is underway, we should perhaps consider the OCPJ (One computer per judge)…

  4. I think it’s non-sense. If publishers didn’t want their content out there being consumed via rss or other technology, wouldn’t they block such technologies Yo avoid their content being “stolen”?

    If they built a huge wall between their headlines and the full content no one would read their stories. No one would visit their sites.

    I agree that they deserve an incoming link. But from there to say they are being ripped off, it’s lightyears away.

  5. @Zeldman: I think the difference between RSS and Meltwater is that the publishers are in control of the content (amount of, etc.) in their RSS.

    I haven’t used Flipboard yet, but if the articles aren’t being republished in full (like Meltwater), and provide a “read more” type link, I would say it’s on pretty safe ground.

    Instapaper though… well… one of the issues mentioned in the case was the amount the publishers wanted Meltwater’s parent company to pay. I’d expect that if Instapaper grows in popularity, we’ll see a discussion come up regarding ads/fees/etc.

    @Bjorn: I personally know a few (okay, three) UK court judges, and I can tell you that they are some of the smartest people you will ever meet.

    What concerns me the most, (and I’m sure these are Jeff’s concerns as well), about the judge’s ruling are the reasons and elements used to help established the “act of copying” verdict. Headlines being an intellectual property? Once the data has been transfered to the user’s computer, it’s an act of copying? Extreme IMO.

    If you ask me though, the problem here has more to do with the mostly conflicting, or sometimes outdated, definitions of copyrights, copying, stealing, IP theft, etc.

    A lot of the laws that’s been written before were meant to protect content creators on the older mediums. But because they can no longer apply to the new medium, everyone is searching for some semblance of order. And as this topic just showed us, the shit is flying all over the place.

  6. The problem is that as replication became next to nothing in cost… we were evolving as a society into one where we all want IP and payment for every little thing in life. Remember standing on your back porch with a tennis racket with friends miming to pop songs in front of your family? How about singing Happy Birthday in McDonalds to your kid? How about all those Jazz singers we love who mashed all their shit together… if current laws existed we wouldn’t have that whole piece of culture in the world… just more generic pop crap flogged on tv as reality X.

    So here we are in a world where some dick corporation owns Happy Birthday, or the Double Click, or biological and even organisational processes. If you point a camera at someone all they can think is “Stranger Danger” and “Where’s my cut?”…

    … it’s the negative effect our fear of copy & paste has had on a cultural level.

    However this is spun, it’s just another step in a long ladder toward a world tied down by the dollar. And until we, the people, stop being greedy grubber bastards with our hand out for our share of the environment things won’t change… courts will follow suit… society’s expectation of right and wrong will continue to tell you that you don’t own the software on your computer and you can’t copy a CD / DVD you paid hard cash for…

    … I’m not saying all IP is bad – we all need to make a living – but I am saying we long entered the Twighlight Zone of carving up the Commons. This is just another rubbish step to a rubbish unfree society where corporations … ah you’re not listening anyway by this stage… there were reasons why govts didn’t like the idea of corporations, a little reading will reveal that their fears came true long ago. Corporations, after all, are a relatively new idea in history.

    The same forces that work in Wallerstein’s World System’s Theory (all money and resources go toward the core) work with IP abuse as well… and in that context who is at the core? Not us. We’re the long term losers in all of this [rant over – apologies Jeffrey for the long comment].

  7. Dragging the cache of browsers into the argument of infringement would make every internet user on the planet an infringer. But the browser makers are not being brought up on charges, probably because the Newspaper Licensing Association (NLA) at least understands that without browsers the entire copy argument becomes moot.

    Much more troubling is the assertion that 256 characters is the Fair Dealing/Fair Use Line. This is troubling as the 256 characters limit is an arbitrary limit set by the NLA, and not by either law or custom . This is like letting browser makers define ‘standards’.

    Does this limit include the hyperlink address, which in some cases exceeds that limit?

    The Fair Use/Infringement line is determined at least in the US on a case by case basis. Using the four factor test, lawyers and a bunch of money.

    Fair Use is an important part of our society, and is vital online.
    Everything that is published in the United States, and most of the world is covered by copyright, and is also available for Fair Use. There is still no definite answer as to which percentage of an item consists of Fair Use, as some items cannot be easily chopped up into discrete bits such a photos, but a portion of a textual piece has been for many years even before the internet, has been used for criticism, comment, news reporting, teaching, scholarship, and research.

    The four factors are:
    the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
    the nature of the copyrighted work;
    amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

    4. the effect of the use upon the potential market for or value of the copyrighted work.

    The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”
    Source: US Copyright Office Website

    This has been demonstrated by the AP/Rogers Cadenhead dust up back in 2008. Then the AP asserted that headlines and the first ‘graph was not only infringement but also Hot News Misappropriation, a ruling that was made in a 1918 lawsuit between guessed it, two news organizations,
    which they must not have in Britain, or they would have tossed it in as well.
    The Fair Use question is still in limbo, but allowing some commercial entity set an arbitrary limit is the most dangerous part of this.

  8. So I worked at one of their competitors, a 120 year old version of them. The basic premis at play which cannot be ignored is that Meltwater was/is relicensing the content to someone else. By having to have a license to access Meltwater they are profiteering on restricted content. When I saw this debated in the halls of my old employer this was a key distinction compared to someone providing the content or path to the content for free even if they make a profit off accompanying ads etc.

    It is fundamentally different to say here is a copy you made via this RSS feeder for yourself than it is to say here; your license with me provides you the right to the material someone else owns which we don’t have a license with.

    These companies are branding themselves as Media Monitoring etc, but they are clipping services and at its core a clipping service works to deliver a copy of the content which your interested in for which you can do what you like.

    The fair use question seems to always be in limbo. For my ex company it was speculated that it was one reason why the print company was different than the TV monitoring company, fair use is defined differently for the mediums.

    The reason the headline was considered an act of infringement was because of the definition of the rights these newspapers agreed to in order to be a part of the NLA. It is the definition of what is restricted by the NLA which sets the headline use as a part of the infringement. If the newspapers has not been members of NLA than this would be a more interesting case.

    Unfortunately the devil is in the details here and maybe a lawyer would have a different take than I do.

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