When a reporter writes a story, what is the heart of the work? Is it this paragraph—the lede?
This isn’t always an abstract, artistic question. In copyright infringement cases, a judge can consider—among other factors—the amount and “substantiality” of the work that’s been lifted. If the alleged infringer has taken the work’s heart, that can weigh against a claim of fair use. In a case decided last week, the Associated Press successfully argued that its opponent, Meltwater, a company which sends subscribers personalized news digests, had violated its copyright, in part because it routinely used the heart of AP’s stories—the ledes.
Meltwater, founded in 2001, sends its paying customers news roundups determined by keyword searches the customers have created. Customers can also use Meltwater to search through online news. In its complaint, the Associated Press wrote that Meltwater had “built its business on routinely copying, verbatim, the heart of AP’s and other publishers’ stories, and selling that infringing content to its subscribers.” In practice, that meant Meltwater used the headline and the lede of a story, along with a keyword-based excerpt of 140 characters, every time it sent one of its clients a link to an AP story. Here’s an example what Meltwater offered up, from a story about a top snowboarder recovering from a dangerous concussion:
Sun shines on the mountain and Pearce rides again
BRECKENRIDGE, Colo. — Basking in the sun and snow, surrounded by his fans and friends, Kevin Pearce carved sweet turns down a gentle run called “Springmeier” — kicking up just enough powder behind him to remind people that, yes, this kid can still ride…
though, as he labored through his grueling rehabilitation, Pearce never gave up hope that he might ride again — if not across a rail or through a …
Meltwater argued that this was fair use of the AP’s copyrighted work. But the district judge deciding the case, Denise Cote, took the AP’s argument to heart, leading the Electronic Frontier Foundation, which had weighed in on Meltwater’s side of the case, to say that she had “implicitly adopted AP’s dangerous ‘heart of the work’ theory.”
“As described by AP’s Standards Editor, the lede is ‘meant to convey the heart of the story,’” Cote wrote. “A lede is a sentence that takes significant journalistic skill to craft. There is no other single sentence from an AP story that is as consistently important from article to article — neither the final sentence nor any sentence that begins any succeeding paragraph in the story.”
The amount and “substantiality” of the work that’s been lifted, though, is just one of four factors that can determine fair use.
The nature of the work also matters, and the use of factual works—like news articles—is more likely to qualify as fair use than that of fictional works. While Cote emphasized the craftwork of news writing, the nonprofits Electronic Frontier Foundation and Public Knowledge argued in an amicus brief that the lede of a story will usually be “primarily factual” and therefore more defensibly reused.
“When it comes to news articles, an excerpt that is shared will very often be the most ‘important’ aspect of the work — but that importance will derive from the uncopyrightable factual content, not the expression,” they argued. The problem with identifying a fact-based lede as the expressive “heart of the work,” according to this thinking, is that the law will always “always favor news publishers, no matter how short the excerpt.”
The background to all this is the Associated Press’s efforts to protect and monetize its work online. Like Meltwater, the AP offers a paid service through which subscribers can receive tailored news digests of AP content. Meltwater and its allies argued that it was providing a different type of service, that of a search engine. In their view, Meltwater’s use of AP’s copy helped create something new— its use was “transformative,” they argued, another consideration for fair use determinations.