Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

Social

Search

sociallyaware-abajournalweb100-1

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

rubin_aaron_blog_150x150.png

rubin_aaron_common_640x280.jpg

rubin_aaron_heroretina_2700x1160.jpg

rubin_aaron_mobileretina_750x1040.jpg

rubin_aaron_social_600x600.jpg

Partner

Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

gallick_lawrence_blog_150x150.png

gallick_lawrence_common_640x280.jpg

gallick_lawrence_heroretina_2700x1160.jpg

gallick_lawrence_mobileretina_750x1040.jpg

gallick_lawrence_social_600x600.jpg

Of Counsel

Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

ramirez_anthony_blog_150x150.png

ramirez_anthony_common_640x280.jpg

ramirez_anthony_heroretina_2700x1160.jpg

ramirez_anthony_mobileretina_750x1040.jpg

ramirez_anthony_social_600x600.jpg

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

favicon.ico

favicon-16x16.png

favicon-32x32.png

apple-touch-icon.png

MoFo Favicons

Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

Welcome to Socially Aware

240920-socially-aware-header.jpg

Welcome to Socially Aware

240920-socially-aware-header

Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

News and Announcements

Blog - Terms of Use

Blog - Privacy Policy

Blog - Blog Disclaimer

Blog - Attorney Advertising

morrison-foerster-blog-logo.png

Provides a data-driven look at the Federal Circuit.

Federal Circuitry

Brings together legal insights and in-depth analyses on trends and complex issues shaping the global technology industry.

MoFo Tech

Mofo Tech

Equips our clients with the most up-to-date and relevant information on employment and labor law issues.

Employment Law Commentary

In-depth analysis of developments and trends impacting government contracting.

Government Contracts Insight

Government Contracts Insights

Provides insights and reports on the most current class actions lawsuits and product liability issues that affect consumer-facing companies.

Class Dismissed Blog

Class Dismissed

MoFo’s Socially Aware blog provides timely updates and analysis of the many complex and cutting-edge legal and business issues arising out of social media.

Socially Aware

  Linkedin

MoFo LinkedIN

Socially Aware Blog - RSS

Stay Connected

Never miss a post from Socially Aware. Enter your email below to stay up-to-date.

Subscribe

The Law and Business of Social Media

Morrison Foerster - Footer

It is well settled that Internet search engines’ reproduction of limited portions of copyrighted materials in order to direct Internet users to locations of ori

Blogs -  Home Button

Home

Blog - Topics

Web Scraping

Advertising

Antitrust

Arbitration

Artificial Intelligence

Asia

Autonomous Vehicles

Bankruptcy

Big Data

Blockchain

Class Actions

Cloud Computing

Compliance

Contracts

COPPA

Copyright

Crowdsourcing

Cyberbullying

Cybersecurity

Data Security

Defamation

Digital Content

Disappearing Content

Discovery

DMCA

E-Commerce

E-Discovery

E-Personation

Electronic Contracts

Employment Law

Endorsement Guides

Ephemeral Messaging

Ethics

European Union

Event

Fair Use

FDA Regulations

Financial Institutions

First Amendment

Fraud

Free Speech

GDPR

Hacking

Influencer Marketing

Infographic

Internet of Things

Investment Management Law

JOBS Act

Labor Law

Litigation

Live streaming

Marketing

Mobile

Online Contracts

Online Endorsements

Online Promotions

Online Reviews

Patent

Privacy

Product Liability

Protected Speech

Right of Publicity

Right To Be Forgotten

Section 230 Safe Harbor

Securities Law

Social Media Policy

Statistics

Status Updates

Stored Communications Act

Supreme Court

Terms of Use

Trademark

UK High Court

User-Generated Content

Wearable Computers

Topics

Blog - Editors

Editors

Blog - About

About

Blog - Subscribe

Southern District of New York Examines Whether News Clipping Service Qualifies as Fair Use Under Copyright Act

Southern District of New York Examines Whether News Clipping Service Qualifies as Fair Use Under Copyright Act | Socially Aware

It is well settled that Internet search engines’ reproduction of limited portions of copyrighted materials in order to direct Internet users to locations of original content constitutes “fair use” under the Copyright Act. (See, for example, Perfect 10, Inc. v. Amazon.com, Inc. and Kelly v. Arriba Soft.) But where is the line between, on the one hand, a search engine’s fair use of a small amount of material to enable users to locate the original works and, on the other hand, infringing reproduction and display of excerpts that serve as substitutes for the original works? A recent opinion by the Southern District of New York in The Associated Press v. Meltwater U.S. Holdings, Inc. provides insight into that question and a cautionary tale for online service providers that utilize search engine functionality to provide “news clipping” or other aggregation services on the Internet.Meltwater News is a news aggregator service that bears some similarity to a traditional search engine: it utilizes an automated program, or “web crawler,” to scan the Internet for news articles; extracts, or “scrapes,” content from online news articles and creates a searchable index of the content; and delivers verbatim excerpts of the articles and links in response to search queries. What distinguishes Meltwater News from traditional (and free) Internet search engines is its apparent purpose and the amount of content delivered in its search results, called “News Reports,” which Meltwater generates automatically on a recurring basis using a subscriber’s standing search queries. The News Reports include article titles; a hyperlink to the web address where Meltwater’s web crawler found the article; information about the article’s source; the opening text of the article (the “lede”), consisting of up to 300 characters; and an algorithmically chosen short excerpt (approximately 140 characters) containing one of the search terms.The Associated Press (AP) sued Meltwater for copyright infringement based on the inclusion of AP’s content in the News Reports. Meltwater asserted fair use (among other defenses that the court disposed of easily) as an affirmative defense (i.e., a defense that Meltwater had to affirmatively prove), contending that its use of AP’s material was fair because Meltwater functions as a search engine. As the court repeatedly noted, however, Meltwater failed to present any evidence directly supporting that argument within the framework of the statutory factors that guide the fair use determination. On summary judgment, therefore, the court held that there was no material question of fact regarding fair use and ruled against Meltwater.This case puts online news aggregators on notice that, if they wish to invoke the fair use defense, the mere fact that they provide search engine functionality does not substitute for a showing that their use of copyrighted materials meets the statutory fair use factors. More specifically, news aggregators should anticipate a few key fair use questions as set forth below and be able to answer them with evidence.Is the Copyrighted Material Being Used for a “Transformative” Purpose? The “purpose and character” of the use that an alleged infringer makes of copyrighted material is one of the statutory factors for determining fair use. A “transformative” use—i.e., a use that is significantly different from the intended use of the original work—will support a finding of fair use. A traditional search engine may be said to make transformative use of copyrighted materials when it reproduces those materials for the sole purpose of allowing users to find the originals. The court rejected Meltwater’s attempt to liken its expensive subscription service to a traditional search engine, however, because Meltwater presented no evidence that its service “systematically drives its customers to third-party websites.” In particular, Meltwater admitted that its “click-through rate” (the frequency with which users click on links to access the underlying AP articles) was likely around .05%, but it chose not to rely on any evidence comparing its “seemingly small click-through rate” to the rates of other Internet search services. Moreover, Meltwater failed to establish that it did not copy more copyrighted materials than are copied by traditional search engines. In fact, Meltwater had described its News Reports as “customized news digest[s]” that “save[] you time so you don’t have to read the full article.” Thus, Meltwater failed to persuade the court that its use of AP’s material served a transformative purpose.Are We Copying No More Than Our Purpose Requires? The “amount and substantiality of the copying” factor of the fair use analysis looks at how much of the original work has been copied and how important the copied portion is to the original work. If a search engine provides results that include the core expressive elements of the underlying original material, rather than displaying only enough material to direct the user to the original, this factor would weigh against fair use. Apparently this was the case with Meltwater’s search results, which included the lede sentence “meant to convey the heart of the story,” and Meltwater made no attempt to establish that it copied no more than was necessary to function as a search engine. The court therefore found this factor to weigh heavily against a finding of fair use.Does Our Copying Usurp the Market for Original Materials?If there is a market for licensing original content and unauthorized use deprives the copyright owner of potential licensing revenue, a finding of fair use is unlikely. The court easily applied this factor against Meltwater, which refused to pay licensing fees to AP while operating in the same commercial space as many AP licensees, including other media monitoring services. Accordingly, the court found that Meltwater “not only deprives AP of a licensing fee . . . but also cheapens the value of AP’s work by competing with companies that do pay a licensing fee to use AP content in the way that Meltwater does.” Meltwater had no effective counter argument to these facts. Instead, Meltwater relied “almost exclusively on its contentions that it is a search engine and that search engines make a transformative use of the copyrighted news stories.” As explained above, the court rejected that argument. The court observed that Meltwater used its service to “obtain an unfair commercial advantage in the marketplace,” and granted AP summary judgment rejecting Meltwater’s fair use defense.Perhaps not surprisingly, AP praised the ruling as a rejection of the mindset that “if it is free on the Internet, it is free for the taking.” Others agreed that the ruling was a “significant victory for journalists, news content owners and legitimate content distributors more generally.”Meanwhile, some observers find the ruling troubling in that it distinguishes Meltwater’s services from free search engines and appears to give weight to the fact that Meltwater reproduced the “heart” of AP’s articles, the factual content of which is not protected by copyright. The ruling has fueled the ongoing discussion regarding the balance of rights between news publishers and news reader applications, including specific analysis of how other news aggregators may avoid similar rulings.Much of the court’s analysis was fact-specific, so it may not have broad application except to those engaged in substantially the same activity as Meltwater’s. As one commentator notes, Meltwater’s service is very different from “typical blogger or social media” activity. Nevertheless, this case sounds a warning to any online service provider that provides content aggregation functionality that goes beyond what is typically provided by traditional search engines. One clear lesson is that, at least in the Southern District of New York, there is no per se rule that a search engine’s provision of links to articles alongside verbatim excerpts of the articles constitutes fair use. If providers of such search or aggregation services wish to avoid summary judgment, they must be ready to show how their use of copyrightable material is transformative.