Associated Press v. Meltwater: Are Courts Being Fair to News Aggregators?

Abstract

While it has long been thought that news aggregators were protected from news providers by the fair use defense of the Copyright Act, Meltwater demonstrates that this may not be true. Although this was the first time a judgment had actually been rendered against a news aggregator for copyright infringement, it is noteworthy that the controversy ended like other infringement suits do, just prior to appeal—with a licensing agreement or other mutually beneficial agreement. Therefore, it is unlikely this case will dramatically alter the landscape. Even if Meltwater does not completely alter the relationship between news aggregators and news providers, it is important that courts take a more expansive view of what is “transformative,” since it is such a crucial part of the fair use analysis. Weighing in favor of news aggregators on the first factor will make it more likely that aggregators will be protected by fair use. This is desirable because aggregators increase news consumption, which leads to wider dissemination of information and a more informed public. The court’s analysis does provide some guidance for aggregators in order to find protection under fair use. This includes the implication that aggregators market themselves as a search engine (or just not as a news clipping service) and allow as many users to access the website (or service) as possible. However, there are still important questions on how best to classify an aggregation service that is protected by fair use and one that is not. Aside from being more flexible in terms of what constitutes “transformative use,” courts should more seriously consider the expanded implied license defense and opt-out framework proposed by Meltwater. This way the aggregators may continue to disseminate information broadly, while also giving the copyright holder discretion to choose who is using the content. This might be the best option for the future, since it is questionable if the Meltwater court, in applying the fair use factors, is being fair to aggregators.