The recent US Supreme Court decision in Associated Press v Meltwater raises an some interesting questions about the application of implied licence and fair use.
Meltwater offers a news aggregation service, and was sued by Associated Press (AP) for copyright infringement in AP content. Meltwater argued that it operated like a search engine, and that its activities did not infringe copyright because:
- There was an implied licence from Associated Press; and
- They were covered by ‘fair use’.
The District Court rejected each defence.
Meltwater argued that it had an implied licence because the sites that published AP content under licence, from which Meltwater had harvested the content, did not use the robots.txt protocol. The protocol indicates to web crawlers what can and cannot be copied from the site. The court said:
… what Meltwater is suggesting would shift the burden to the copyright holder to prevent unauthorized use instead of placing the burden on the infringing party to show it had properly taken and used content
The court rejected Meltwater’s fair use defence for reasons that included:
- Meltwater’s business competed directly with that of AP and AP’s licensees;
- Meltwater’s use of AP’s content was not ‘transformative’; and
- ‘the rejection of the fair use defense here will further the ultimate aim of the Copyright Act, which is to stimulate the creation of useful works for the public good’.
The court also rejected Meltwater’s argument that it was operating as a search engine. Meltwater may have been using search engine technology, but its business was not that of a search engine.
These comments raise the interesting question of the extent to which the activities of search engines might be covered by implied licence. This is an issue under consideration by the Australian Law Reform Commission (ALRC) in its inquiry into copyright and the digital economy, as it considers whether an exception similar to the fair use defence in the US should be introduced in Australia.
The court said:
It is fair to assume that most Internet users (and many owners of websites) would like crawlers employed by search engines to visit as many websites as possible, to include those websites in their search results, and thereby to direct viewers to a vast array of sites. Adopting Meltwater’s position would require websites concerned about improper copying to signal crawlers that they are not welcome.
Search engine operators and others have argued in favour of introducing a fair use defence into Australian law to cover activities associated with the ‘public good of search’, but an initial question must be the extent to which such activities might already be allowed.
- A big week in copyright, Kirtsaeng, isoHunt and Associated Press v Meltwater (Barry Sookman, 25 March 2013)
- Meltwater – AP score first victory in the US (1709 Blog, 22 March 2013)
- Sorry Fair Use, Court Says News Clipping Service Infringes On AP Copyrights (TechDirt, 21 March 2013)
And on Meltwater litigation in the UK: