DVR Protections Invoked to Pause Associated Press

MANHATTAN (CN) - Just as fair use protects DVR technology, it also shields a service that offers snippets of news articles, digital rights advocates told a federal judge.

The amicus brief from the Electronic Frontier Foundation and Public Knowledge disputes a theory from the Associated Press that the transformative justification for use of a copyrighted work cannot be invoked unless the resulting product serves a different expressive purpose.

Under this standard, The Associated Press accused Meltwater of using a "parasitic business model" to willfully exploit and profit from published news articles - a "crisis" afflicting traditional newsrooms the world over.

Unlike Google News, Yahoo News and AOL, Meltwater's search engine charges annual subscriber fees to analyze and access published news articles.

"Meltwater has built its business on routinely copying, verbatim, the heart of the AP's and other publishers' stories, and selling that infringing content to its subscribers," the 2012 complaint charged.

But the EFF and Public Knowledge insist that the AP embraced the pejorative parasite argument to undermine Meltwater's value and boost "a woefully cramped view of fair use."

The AP's argument is "unfounded and dangerous to innovation," according to the brief authored by Julie Ahrens, of Stanford Law School's Center for Internet & Society.

"If adopted by this or any other court, this view would sharply curtail the essential role fair use plays in facilitating online innovation and expression, restricting the use and development of services that allow users to find, organize and share public information, services that depend on making intermediate copies, and even personal consumer uses such as time-shifting," the brief states.

"Time shifting" is the industry term for technologies, such as DVR, that allow users to record programming for later consumption.

If "transformative" use must be "expressive," time shifting would not permissible, the EFF and Public Knowledge claim.

"Certainly many fair uses are made by remix artists and parodists, but many more are made by private citizens who simply wish to backup the music in their iPod, watch lawfully obtained content on a different device, or use a DVR to watch 'Game of Thrones' at midnight instead of its regularly scheduled time," the brief states.

Banning time shifting also contradict the 1984 Supreme Court decision Sony Corp. of America v. Universal City Studios Inc., which upheld Sony's Betamax video recorder, according to the filing.

The digital rights supporters also cited the unsuccessful attempts by Righthaven to enforce media copyrights against small bloggers, political campaigns and others.

"In every one of the cases that were actually tested in court, Righthaven lost on fair use or other grounds, but the expense of litigation (compounded by the risk of statutory damages) forced many to settle rather than fight," Ahrens wrote. "As this sorry example suggests, where potential fair uses are under threat, courts must take care not to construe copyright law expansively, but rather hew closely to copyright's original purpose."

Two Righthaven appeals are scheduled to go before a three-judge panel of the 9th Circuit on Feb .5.

Meltwater's defenders also cite precedent in the 2006 decision Bill Graham Archives v. Dorling Kindersley Ltd., a 2nd Circuit case that upheld the reprinting of concert posters in a book.

"If the use of an image in a timeline, solely as an 'historical artifact graphically representing the fact' that a concert occurred, is sufficiently 'expressive' to qualify as transformative in AP's view, why isn't Meltwater's use of a link and a few hundred characters to document the existence of a news article?" Ahrens wrote.

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