A court decision in an Associated Press lawsuit about hyperlinks could have a chilling effect on search engines, journalists, bloggers, clipping tools like Evernote, and other business clipping services.
A federal court ruled in favor of AP in a case against a Norwegian company, Meltwater News, which provides an online clipping service for businesses and governments. Meltwater News searches online articles based on keywords, then sends subscribers the headline, the first sentence of the article -- called the "lede" in journalism jargon -- and one sentence containing the keyword.
Meltwater News also maintains a database of articles and lets subscribers search the database. Meltwater claimed it was fair use to use the content in this way, but AP disagreed, took the company to court, and won.
Google News does something very similar by including the headline and lede, but the judge separated search engines and Meltwater because Google makes its results available on the public Internet, and Meltwater News is private, for subscribers only.
The Electronic Frontier Foundation (an organization I respect greatly) questioned the validity of the ruling:
First, the court concluded that Meltwater's purpose was not transformative because it neither added commentary or insight to the excerpts it sent to customers nor served the same information-finding goal as a search engine like Google. Why not? In a nutshell, apparently because it was not public and not very successful at getting its customers to click through to the original articles.
What's more, EFF wondered why the judge gave such value to the lede, which the judge called "Öa sentence that takes significant journalistic skill to craft." She went on to say that it was designed to pique the reader's interest. That's true and it's even more true today when our main goal is the get the reader interested enough to click through.
In fairness, I should note that PaidContent reported that Meltwater had a terrible click-through rate of just 0.08 percent, and that Google has a 56 percent click-through rate. But Meltwater didn't appear to be using the content in any unusual way except for the fact it was making money by providing the information. This invites the question, should Meltwater be held responsible for the clicking habits of its customers?
EFF also reported that the judge discounted the use of robots.txt to limit the ability of crawlers like Meltwater to find it. If it didn't want to be found, AP could have set up its website to block crawlers. For some reason, the judge didn't think it was relevant that AP had the technical ability to stop Meltwater on its own, yet chose to sue them instead.
It's worth pointing out that PaidContent reported that other similar clipping services are already paying AP, so the impact on similar service providers isn't likely to be that significant. But if the decision increases the likelihood that AP will take others to court over linking and sharing, then the implications could be very broad indeed.
If you think that's just hyperbole, consider that former AP CEO Tom Curley bashed the practice of linking for years, which I wrote about back in 2009. AP chief executive Tom Curley suggested in a 2009 New York Times' article that any use, even a simple headline and link could, in AP's view, constitute a copyright violation.
So apparently AP has been on a crusade all these years to find the perfect lawsuit to attack the link, and if that's the case, this win could be even more frightening than it appears at first blush -- because if AP raises the stakes in this fight, it could have broad implications for every one of us who values sharing on the Internet.
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