Tuesday, December 2, 2014

News Aggregation and Fair Use

Dear Rich: We're interested in aggregating entertainment news for a new app. Is there any formula to use to figure how much can you take from a news site. Sorry, but there's no way to quantify how much is "too much." It's more helpful to look at the handful of public disputes over news aggregators (websites or applications that gather news or news feeds from other sources). In 2005, the Associated Press (AP) was involved in a dispute with All Headline News, a company that copied and rewrote news stories and resold them. AP seems to have had the upper hand because the parties settled before trial with All Headline News agreeing to pay for past use and to halt future use of AP content. In another dispute, AP went after Google for its news clipping service. The result: Google entered into a licensing deal with the AP, as well as with another news organization, AFP.
Meltwater and the search engine defense. More recently AP sued Meltwater and prevailed on its infringement claim. Meltwater argued that it functioned like a search engine -- an argument that had worked successfully in other fair use/search engine litigation and scanning/search engine lawsuits. But Meltwater differed from search engines like Google because it was a paid subscription service. It also failed the fair use test because its service cut into AP's clipping service revenues and because it sometimes copied up to 60% of articles. (One possible takeaway: don't mess with AP!)
Fox News and TVEyes.  A related case involved a TV clipping database, TVEyes, that made it possible for users to search news broadcasts using keywords, then view a portion of the curated news clip containing those keywords. A district court determined that the storage, indexing, excerpting, and reproduction of the clips was a fair use. The court emphasized that the purpose of the database was unique and transformative, and dismissed the “very small possible impact” of  lost revenues for Fox.
Bottom Line Dept. As this informative (slightly outdated) article explains, the type of aggregation (there are a few variations) may make a difference as to whether your app qualifies for fair use. It also explains the disfavored concept of hot news. In any case, we must repeat our fair use mantra: no matter what we say, only a court can determine what constitutes fair use.