The almost reflexive cry of “fair use” is often employed upon receipt of a claim of copyright infringement.  The response has the benefits of being short and sounding definitive.  As we have frequently stated, most often the defense does not apply in the overwhelming majority of copyright infringement cases. The following case is not a photography case, but take note as the principles of fair use apply directly to what is usually a defense by photography infringers.

Recently the Federal Court (in Manhattan) rejected the defense, which was asserted by an Internet news aggregator named Meltwater. Meltwater freely admitted to using crawlers to scrape and copy news articles authored by others including the AP.  Meltwater would appropriate anywhere from 5 – 60% of a given story including what the AP claimed was a critical aspect of their pieces – the last sentence. Meltwater admitted to infringing but relied on the fair use defense so that its actions would be protected from any liability.

Meltwater referenced how a fair use defense may be made when the otherwise infringing activities concerned criticism, news reporting, teaching and whether the use was trans formative.  (See our articles on fair use in this blog including, “It Ain’t Over Till Its Over and This One Ain’t Over” and “Head Fakes”)

Meltwater claimed that its “search engine” was not as AP asserted a “mere clipping service” but was transformative much like the fair use of thumbnail images improved access to information on the Internet purportedly causing the viewer to search for other or related material.

The Court did not buy any of it in this case.  Rather it noted how Meltwater blindly repeated (and copied) large portions of AP articles almost indiscriminately by taking the lead and/or final sentence of every AP story. Users were using the service to read the news as reported and prepared by AP’s writers, not find the news. Meltwater readers were not in fact using a “search engine” and were being provided substantial portions of AP articles.

No new legal ground was really broken. This case is noteworthy in that it demonstrates that some well-heeled parties will pay expensive lawyers considerable sums to roll the dice on a “fair use” defense.  The upside of a successful fair use defense here (as is typical) would have been virtually unrestricted ability to steal substantial portions of the intellectual property created by others without paying a dime for it.

Those of you attending our Las Vegas seminars will be treated to some great visuals and discussions on what is, and what is clearly not “fair use”.