Friday, October 12, 2007

Mining Disaster: Moreover's Mined Web Content Draws AP Suit

The Associated Press' position in the news world is in some ways stronger than ever, building on both traditional newspaper portals and the growth of online-only news venues such as Yahoo, Google and social news outlets. But it's also a challenge for AP and other wire services to define a path towards long-term growth as the variety of outlets that can generate and distribute news on the Web outside of their purview accelerates. An earlier lawsuit against Google for their use of news from AP on member sites yielded a settlement in AP's favor, so it's no surprise that AP is trying again with a new lawsuit against Moreover, Verisign's content mining service for media and enterprise clients.

In the AP statement on the suit AP notes that AP discovered the extent of Moreover's practices while negotiating with it to provide content management services to the AP's members. Oops. The main bone of content seems to be that, like Google, Moreover is fairly efficient at harvesting news from AP from member sites for its clients, claiming that headlines could be appearing in Moreover within two minutes of their hitting a news Web site. This hits a little too close to AP clients who want to be the source for breaking news headlines. Adding to AP's perceived pain is Moreover's revenues gained from ad-supported and subscription services, including what AP claims is Moreover's use of story texts and photos.

Cleverly the suit claims that Moreover's uses of headlines violate fair use laws by merely copying them instead of transforming them into a unique form and format. Given that fair use is used primarily for publications to use limited direct quotation of sources in news articles and other original works this seems like a stretch at best in relation to fair use law. By this definition any page of search results would be suspect, even though one could argue that each page of search results represents an original work of authorship through its organization of content into a unique compilation as proscribed under U.S. Copyright law. Search engine companies have been reluctant to test this concept in courts, however, as globally the interpretation could vary significantly. So this type of threat has been an effective tool for brining technology companies to the bargaining table for AP.

Although AP's suit covers no apparent new legal ground it's use as a negotiating tool targeting a content harvesting company is an important new wrinkle. Although Web mining technology is in many ways little different than search engine crawlers its use to build applications beyond mere search results means that more value-add applications based on these technologies are becoming targets for copyright enforcement. It opens up many questions for both Web miners and providers of mashups and embedded content services. Services such as Sphere, which serve up embedded link references through its own crawling services, have become very popular with publishers trying to provide value-add content links to their sites, and these could become potential targets for AP-like lawsuits as well. Notably AP is targeting relatively mature businesses but with its use of the Attributor content tracking technology any service could become a target potentially.

While AP may have some legitimate foundations to their concerns at the end of the day this is yet another company with distribution at the heart of their content business model struggling to understand how to position itself in a marketplace where distribution is in essence a free service. Like music publishing companies trying to position the value of their services for potential clients AP's aggressiveness in monitoring and pursuing potential copyright infringement provides them with a legal enforcement angle to their content licensing services that can help to justify premium prices for their services. But also like music publishers may come a point when the talent recognizes that they're pretty good at making money without distribution-oriented middle men.

But AP is far smarter than music publishers in pursuing licensing deals through their surveillance efforts with companies that are likely to be able to pay in proportion to the commercial value of their services. Notably Moreover was an early entrant into content harvesting so its relatively mature base of enterprise and media clients gives AP a reasonable target to pursue that's more likely to settle on commercial terms than to go to the mattresses to defend matters on principle alone. In this sense AP is approaching situations like the Moreover suit as a rather aggressive business development effort - one that's not likely to endear AP content to the burgeoning embedding industry but one that may have some commercial effect for now but which may erode interest in AP as a business partner over time. In the meantime the stage is still wide open for virtual aggregation services that manage copyright issues effectively for both enterprise and media services to keep suits like AP's from becoming licensing nightmares.
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