A New York Court Ruled that Clipping Content from Internet without Payment is not Covered by Fair Use

Meltwater is a Norwegian clipping service that monitors news about its clients on the Web. These paying clients include companies and governments that fork out good money to outsource trolling the internet for news items themselves. Meltwater provides them with news alerts, newsletters and access to a searchable database.

Those newsletters include introductory sections of news stories (aka “ledes”) that were taken from the Associated Press (AP) and other sources. AP promptly demanded that Meltwater buy a license to distribute news story excerpts. Meltwater refused, pointing out that lifting those ledes from the internet is covered by the fair use rules. AP then sued Meltwater for copyright infringement.

In court, Meltwater argued its activities are identical to those of search engines such as Google (which is showing headlines and text snippets in search results and is covered by the fair use rules. Meltwater would therefore be allowed to clip and display news stories that were found on internet.

U.S. District Judge Denise Cote disagreed and ruled that there are limits to the amount of content an internet scraping service such as Meltwater can lift from internet without payment stating: “Instead of driving subscribers to third-party websites, Meltwater News acts as a substitute for news sites operated or licensed by AP.”

This ruling is also based on the “click-through” rate of the news stories that Meltwater dissipated. According the judge, Meltwater had lifted more than was necessary for a search engine and that is therefore harmed AP stating: “Paraphrasing James Madison, the world is indebted to the press for triumphs which have been gained by reason and humanity over error and oppression [...] Permitting Meltwater to take the fruit of AP’s labor for its own profit, without compensating AP, injures AP’s ability to perform this essential function of democracy.”

Reactions to the ruling were mixed. According to Techdirt’s Mike Masnick, the judge misinterpreted the “fair use” rules, while AP and the New York Times were happy.

Needless to say, Meltwater appealed - so stay tuned!

To Be Googleable or Ungoogleable – That’s the Question in the State of Sweden

Some brand names and trademarks have become generic words. “Hoovering" (brand name Hoover) in the UK is the generic word for vacuum cleaning. Aspirin (trademark of Bayer) has become a generic term to refer to any OTC painkiller.

Google is facing a similar dilemma. “To Google” nowadays refers to searching the internet – regardless of the search engine used. (I often joke that Descartes would have stated: “I can be googled, therefore I exist”)

Google addressed this threat its brand name in its IPO filing. Under the intellectual property heading of the risks section it said: “We also face risks associated with our trademarks. For example, there is a risk that the word “Google” could become so commonly used that it becomes synonymous with the word “search.” If this happens, we could lose protection for this trademark, which could result in other people using the word “Google” to refer to their own products, thus diminishing our brand.”

Google is therefore keeping track of the dangers of its brand name becoming generic. That’s why they objected to the Swedish term “ogooglebar” (“something that you can't find on the web with the use of a search engine”). Google demanded that the Language Council of Sweden would change the term to “something you can’t find on the web with the use of Google search”.

The Language Council of Sweden refused and decided to drop the term "ungoogleable" from its list of new words. According to the Council’s spokesperson Ann Cederberg, “engaging Google's lawyers took too much time and resources." According to her, the Council therefore opted to remove the phrase from its 2012 list of new words. She furthermore stated that "ungoogleable" is already a popular word in Sweden.  Google will therefore have a uphill battle to stop Swedes from using it.

For Google, it’s a Catch-22 for Google. They are on one hand the most popular brand associated with web searching. But on the other hand, Google want to protect its brand to prevent it from becoming a generic word.

Personally, I agree with Google. After investing so much time and efforts in building its brand, Google is entitled to its brand name.

Do you agree with me? Or do you think that it is already out of Google’s hands? Please let me know!

Landmark decision by the US Supreme Court for Resell of Copyrighted Content

In the case of Kirtsaeng v. John Wiley and Sons, the US Supreme Court ruled that American IP owners cannot stop imports and re-selling of copyrighted content that is lawfully sold outside of the US. It marks a major victory for American consumers since it allows them to shop worldwide for content that is covered by IP.

It means that a legal purchaser of a copyright-protected item may dispose of that property anyway he/she sees fit. The court ruled in favor of an immigrant scientist from Thailand., Supap Kirtsaeng,  imported textbooks that were lawfully printed overseas by a U.S. publisher. He then sold those printed textbooks on eBay.

The Supreme Court explained in it ruling that products are nowadays easily bought and sold outside of the US. Customers therefore enjoy a wider choice as well as lower prices for items that companies, libraries, used bookstores and retailers can import to the US, without the need to verify if any there is any US IP for further sale. To quote the Supreme Court: “A geographical interpretation would subject many, if not all, of them to the disruptive impact of the threat of infringement suits.”

This decision preserves the rights that the first-sale doctrine protects manufacturers, retailers, libraries, consumers, and the public at large.

The Supreme Court’s decision could potentially also impact digital content as well as is pharmaceuticals. As a result, people could opt for buying drugs abroad where prices are lower.

The Kirtsaeng case shows us legal eagles that copyright monopoly must be limited to its constitutional purpose. As the Supreme Court stated: “American law … has generally thought that competition, including freedom to resell, can work to the advantage of the consumer”.

Supreme Court to Hear Generic Drug Suit – Could Have Consequences for Pharma Companies Taro and Teva

Generic drugs are supposed to be identical to the brand names that preceded them. According to the law, they must have identical warnings and labels. The question is if they also need to carry the same liability since they cannot change the product or its labeling. The U.S. Supreme Court will rule on that issue soon. .

It will hear oral arguments in a case where consumers claim to be injured by generic drugs. The generic manufacturers in question argue that they should be shielded from those kinds of lawsuits since they do not have any discretion to change the product or its labeling.

A 2011 decision by the court protected generic manufacturers from the most common kind of lawsuit involving prescription drugs. In that case, PLIVA v.Mensing, the court ruled that a generic drug maker could not be held liable for failing to adequately warn consumers of side effects in its labeling, since US federal law requires generic drugs to carry the same label as the brand name.

The current case is Mutual Pharmaceutical Co. v. Bartlett. In this case, the question is if makers of a defective drug — even if they can’t change the label — can stop selling the product without violating federal law and be held accountable if they don’t.

This is one of two Supreme Court cases involving generic drugs. The second one, going before the court soon, centers on what the Federal Trade Commission exactly has labeled as “pay for delay” patent settlements between brand name and generic drugs.

The FDA argues that “pay for delay” is anti-competitive and is costing consumers billions. The generics industry argues that its an efficient way of bringing cheaper products to market before the patents on brand name drugs expire.

The outcome of both cases will impact generic drug manufacturers such as Taro and Teva.