Translating legal opinions as they apply to social media is a difficult task. It’s even harder when the opinion involves fair use. Because even though fair use is something almost everyone has heard of, nobody really knows exactly how it works. This is true for lawyers and courts as well. Although there’s a well-known four-factor test, the factors aren’t easy and they aren’t designed to be simple. One of the major cases where the Supreme Court spoke about these factors even stated that these are intended to be difficult questions to answer.
Last week the Southern District of New York (a very active and highly influential circuit when it comes to copyright questions) rendered summary judgment in the Associated Press’ lawsuit against Meltwater. Meltwater is a site that clips thousands of news articles and distributes “summaries” (I hate putting words in quotes but necessary here as the summary could be just the first sentence of the article or up to 60% or more of the original article) of articles that match search queries set up by paying customers.
I’m not going to summarize the case for you here, sorry. It’s far too complicated for a quick blog post. Instead I just wanted to address a lot of myths getting circulation right now around this case.
Myth 1: This case applies to you
Unless you are the Associated Press or Meltwater, except in rare circumstances, this case probably does not apply to you. Yes, it involves a company that copied stories from the AP and if you are a social media practitioner you may have copied quotes from an article with or without links. But what Meltwater did was several orders of magnitude different from a typical blogger or social media practitioner. Their service pulled thousands of stories and used an automated program to copy relevant information and present it to people who had related search queries. Unless you have a business engaged in this kind of systemic commercial copying, odds are that there are enough differences in what you do to this case that you don’t have an immediate need to worry (but if you do have a similar business, I’m guessing you’re talking with your lawyer anyway just to be safe).
Myth 2: This dispute is over
As much influence as the Southern District of New York has when it comes to copyright cases, this case is far from over. It might be overturned. It might be upheld for completely different reasons than the ones articulated by the court. It might be upheld without comment, affirming the entire analysis already done. It will be a few years before we know for sure.
Myth 3: The decision has a ton of problems
Techdirt wrote an article that claimed the opinion in this case had a ton of problems. They even put the word ton in italics to really show the legal impact. But their analysis was flawed and missed the point on several aspects. I’m not even linking it here because I don’t want to encourage the spreading of bad info, but if you have read their take on the case just know that it was a total swing and a miss. The court’s opinion may very well be overturned, that can happen with almost any case. But Techdirt didn’t understand the legal analysis done for the fair use factors (for example, he confuses the concept of innovation with the first fair use factor of transformation–innovation in technology happens all the time, even by automating previously manual tasks, while transformation in fair use is a different and not necessarily related analysis).
Myth 4: This is a clean win for the AP
This myth came from a decent summary over at PaidContent as an entire section about AP’s victory at summary judgment. Yes, the AP did win this phase of the case but any case that involves fair use isn’t a clean win. It was a messy win filled with extensive electronic discovery, investigating five independent defenses put forth by the defendant, and enough billable hours to make at least a couple of law firms’ years. There’s even some discussion in the 91 page opinion of the fight between the two sides over producing evidence of Meltwater’s click-through rate. Any attorney with litigation experience will read those passages and grimace at the probable pain that both sides went through over several months to resolve that issue (if it was ever resolved). There is a victory here, so far, but that isn’t clean. It might not even be repeatable.
There might be more myths to come, but for now those are the biggest ones I’m seeing.