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A federal court has sided with the Associated Press and the New York Times in a closely-watched case involving a company that scraped news content from the internet without paying for it.

The case has important implications for the news industry and for the ongoing debate about counts as “fair use” under copyright law. Here’s a plain English explanation of what the case is all about and what it means for content creators and free speech.

Fair use or a free ride? The facts of the case

The defendant in the case is Norway-based Meltwater, a service that monitors the internet for news about its clients. Its clients, which include companies and governments, pay thousands of dollars a year to receive news alerts and to search Meltwater’s database.

Meltwater sends its alerts to client in the form of newsletters than include stories from AP and other sources. Meltwater’s reports include headlines, the first part of the story known as the “lede,” and the sentence in the story in which a relevant keyword first appears. The Associated Press demanded Meltwater buy a license to distribute the story excerpts and, when the service refused, the AP sued it for copyright infringement.

Meltwater responded by saying it can use the stories under copyright’s “fair use” rules, which creates an exception for certain activities. Specifically, Meltwater said its activities are akin to a search engine — in the same way that it’s fair use for Google to show headlines and snippets of text in its search results, Meltwater said it’s fair use to clip and display news stories.

The case has divided the tech and publishing communities. The influential Electronic Frontier Foundation filed in support of Meltwater, arguing that AP could inhibit innovation and free expression if it succeeds with the copyright claim. On the other side, the New York Times and other news outlets filed to support the AP; they claim Meltwater was simply free-riding and that the company is undermining the ability to create the sort of journalism on which a free society depends.

A clean win for the AP

In a decision published Thursday in New York, U.S. District Judge Denise Cote shot down Meltwater in blunt language. While much of the 90-page ruling covers procedural issues and other defenses put forth by Meltwater, the heart of the decision is about fair use.

To decide if something is fair use, courts apply a four-part test that turns in large part on whether the defendant is using the copyrighted work for something new or unrelated to its original purpose. Famous examples of fair use include a parody rap song of “Pretty Woman” and Google’s display of thumb-size pictures in its image search. In the AP case, however, Meltwater’s fair use defense failed.

Judge Cote rejected the fair use claim in large part because she didn’t buy Meltwater’s claim that it’s a “search engine” that makes transformative use of the AP’s content. Instead, Cote concluded that Meltwater is more like a business rival to AP: “Instead of driving subscribers to third-party websites, Meltwater News acts as a substitute for news sites operated or licensed by AP.”

Cote’s rejection of Meltwater’s search engine argument was based in part on the “click-through” rate of its stories. Whereas Google News users clicked through to 56 percent of excerpted stories, the equivalent rate for Meltwater was 0.08 percent, according to figures cited in the judgment. Cote’s point was that Meltwater’s service doesn’t provide people with a means to discover the AP’s stories (like a search engine) — but instead is a way to replace them.

The judgement also points to the amount of content that Meltwater replicated. Whereas fair use allows anyone to reproduce a headline and snippets, Cote suggested Meltwater took “the heart” of the copyrighted work by also reproducing the “lede” and other sentences:

“A lede is a sentence that takes significant journalistic skill to craft.  [It shows] the creativity and therefore protected expression involved with writing a lede and the skill required to tweak a reader’s interest.”

The ruling added that Meltwater had taken more of the story than was necessary for a search engine and that its economic harm to AP also weighed against finding fair use. And, in a line that likely had news agencies clicking their heels, the judge wrote:

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.

These are what I regard as just some of the most important points of a very long decision. You can read it for yourself below; I have underlined key passages.

Common sense or a chill on free expression?

The decision has already caused concern on the part of internet freedom advocates. Techdirt’s Mike Masnick, for instance, says the ruling has “a ton of problems” and that Cote misapplied the four-part fair use test.

Meanwhile, the company has vowed to appeal and and its CEO claims to be “especially troubled by the implications of this decision for other search engines and services that have long relied on the fair use principles for which Meltwater is fighting.”

Meltwater is likely to face an uphill battle on appeal, however. Cote’s ruling is exhaustive and the Second Circuit Court of Appeals is regarded by many lawyers as sympathetic to the hometown publishing community.

The impact of the ruling, however, will be determined by how far it ripples beyond Meltwater. As all of the companies’ competitors have already paid AP for a license, the impact could be insignificant for everyone but Meltwater while, at the same time, boosting the AP’s resources for gathering news.

On the other hand, the ruling could embolden the AP and other news outlets to file more lawsuits. While this could bring more licensing revenue for journalism, it may also produce a phenomenon like what is occurring in France and Germany where publishers are treating copyright like a tax to protect outdated industries — and chilling online innovation in the process.

Meltwater AP Ruling

(Image by Pixelbliss via Shutterstock)

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Startups offer all sorts of digital health products and services but One Medical Group is using health technology to power an entire health care practice. On Friday, the company said it had raised $30 million in a Series F round that brings its total amount raised to $77 million.

Google Ventures led the round and previous investors, Benchmark Capital, DAG Ventures, Oak Investment Partners and Maverick Capital, also participated.

Founded in 2005 by MD-turned-MBA, Dr. Tom Lee, One Medical Group aims to bring “concierge”-style medicine to the masses. In addition to more personalized care and same-day visits, patients can book appointments, renew prescriptions, check lab results and see their medical records online, as well as exchange email with their doctors.

“We’re trying to make health care work and we think we can do that by building a stronger system… and using technology that lets doctors interact thoughtfully with patients to manage their health,” said Lee.

More health technology companies are beginning to provide these kinds of solutions to doctors: ZocDoc enables online appointment booking and checkins and Ringadoc supports on-demand video and phone calls with doctors. But One Medical Group provides a holistic view of what the future doctor’s office could look like.

In line with recent health care reform legislation, the company is focused on improving patient outcomes with a model that enables more face time with physicians, as well as the ability to communicate with them digitally. Helped by technology, the company says it has cut administrative support from 4 people per office to 1.5, meaning it has extra money to put towards supporting the patient-doctor relationship.  At a typical primary care office, doctors see 25 to 30 patients a day, for 5 to 7 minutes each, but One Medical Group said its doctors see 16 patients a day for an average of 20 minutes each.

Since launching, the company has relied on venture funding and declined to share information on its membership and profitability. But in addition to expanding into new markets (it now has 23 locations in San Francisco, New York, Boston, Washington, DC and Chicago), it’s beginning to explore an additional business model. To date, it has added patients directly — it accepts most insurance plans but patients pay $150 to $200 for an annual membership —  but Lee said they’re in final discussions with several employers to offer One Medical Group as a full benefit or as one of other options.

With the new funding, he said, the company will invest in new markets, improvements to its technology and relationships with employers and health plans.

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Here, some staff picks of smart, funny, bizarre and cool stuff on the interwebs this week. First, happy (late) World Poetry Day! Celebrate the occasion with 8 talks from spoken-word poets.

Vijay Kumar: Robots that fly … and cooperate
Just when you thought Vijay Kumar’s robots that fly and cooperate were creepy enough, he and his team have developed a drone that can pick up objects at high speed using a bird-like claw. [The Verge]

A piece by Ed Yong takes an in-depth look at new findings on the mechanics of swarming, a phenomenon that has baffled scientists. Awesome quote: “Cannibalism, not cooperation, was aligning the swarm.” [Wired]

Beautiful photos from Christo’s “Big Air Package” — which is being called the “largest indoor sculpture in history” — being installed at the Gasometer Oberhausen, due to premiere in December 2013. [This is colossal]

Ed Boyden: A light switch for neurons
Congrats to Ed Boyden, who was named one of the winners of the 2013 Grete Lundbeck European Brain Research Prize earlier this week for his work on optogenetics. Watch Boyden’s 2011 talk, about using fiber-optic implants to control specific neurons in the brain. [MIT news]

What is it like growing up in a futurist household? Veronique Greenwood’s mother, a technology consultant, was touting the rise of mobile social networking years before the iPhone had come out and before Facebook had a “Like” button; she had pens printed with the slogan “Remember when we could only hear each other?” a decade before Skype. [Aeon magazine]

Stewart Brand: The dawn of de-extinction. Are you ready?

More Ed Yong? Yes. Yong takes a look at the pros and cons of de-extinction (a big topic in these parts after Stewart Brand’s TED2013 talk). [National Geographic]

Congratulations to TED Fellow Durreen Shahnaz, whose company, Impact Investment Exchange, has been nominated for the Rockefeller Foundation Centennial Innovation Award.

Timo Arnall’s thoughtful critique of the growing trend to encourage “invisible” interaction design. [Elastic space]

Jehane Noujaim wishes for a global day of film

More congrats are in order, to 2006 TED Prize winner Jehane Noujaim, who just completed a Kickstarter to raise money for postproduction on her Sundance Award-winning documentary The Square. [Kickstarter] Read more about The Square.

A father overhears his son talking about coming out of the closet to his mother and him, then leaves him this note. [Twitter] More details from Gawker.

A cute hello from the Axosoft TED Live event from TED2013. Watch for some tasty-looking carrots. [YouTube]

Nilofer Merchant, author of the bestselling 11 Rules for Creating Value in the #SocialEra (published by Harvard Business Review Press), recently did an @Google Talk, and the company posted the video today.

Google explains, “In this talk, Merchant argues that ‘social’ is much more than ‘media.’ Smart companies are letting social become the backbone of their business models, increasing their speed and flexibility by pursuing openness and fluidity. Her thesis doesn’t just apply to companies but also people. Individuals connected together can now create in ways that once only organizations could. Today’s successful leaders don’t operate like the powerful ’800-pound gorillas’ of yesteryear – but instead act more like a herd of 800 gazelles, moving together across a savannah, outrunning the competition.”

Enjoy.

While in New York this week for a GigaOM event, I had coffee and lunch with a number of media-industry insiders and observers, including Jay Rosen and Clay Shirky – two people I think are among the smartest media analysts in the business. And one thing that kept coming up is what I have chosen to call the “barbell problem” for media, and specifically for newspapers: in other words, the feeling that while both ends of the journalism spectrum are probably going to be fine, the middle is getting squeezed to the point where its future is uncertain at best.

So the New York Times, for example, is going through the same kind of uncertainty and upheaval as the rest of the industry – having to lay off staff, cutting costs, selling assets. But while the paper’s paywall and other measures may not totally fill the gap caused by erosion of advertising revenue, the NYT has enough resources to not only survive but do well. Likewise, the Financial Times and the Wall Street Journal will probably survive and prosper, along with some other large brands.

Some prominent journalism brands will likely be fine

This is exactly why Shirky and his coauthors on the recent “Post-Industrial Journalism” report from Columbia specifically excluded any discussion of the Times from their analysis of the future of journalism. As Shirky described it, it’s like the average driver measuring themselves by looking at someone who races on the Formula One circuit. Practically speaking, there are very few meaningful lessons other newspapers can learn from the New York Times.

That’s one end of the barbell. The other end is the ultra-small, hyper-local newspaper – the daily or even weekly broadsheet that serves a small town or region, where the disruptive forces of the Web haven’t made themselves felt as strongly and local shopping flyers are probably still a pretty good business. This is the kind of newspaper that billionaire Warren Buffett is buying up – the kind that still has a lock on a local market. Paywalls may work well here because of the lack of compelling alternatives.

And what’s in the middle? Everything else – medium-sized papers like the Miami Herald or the San Francisco Chronicle or the Boston Globe, as well as most of the larger metro papers like the Chicago Tribune and the Los Angeles Times and the Philadelphia Inquirer. What does their future look like?

Many of these papers have been trying to make paywalls work, but for most the results appear to be fairly lackluster at best – even the Boston Globe, which is far from the worst newspaper in a medium sized market, has attracted just 28,000 subscribers after more than a year. Its owner the New York Times has put it up for sale and may get less than $100 million for it, and that’s after removing the single most damaging part of the business from the equation – namely, the paper’s $200 million or so in pension obligations.

What happens to the news that doesn’t pay?

Those pension obligations are one of the biggest mill-stones around the neck of traditional media entities. And the bottom line is that even with some reader support, as Rosen and I discussed, these papers are going to have to shrink dramatically or come up with new forms of revenue, which is why the Washington Post is experimenting with what has come to be known as “sponsored content” (something we’ll be talking about more at paidContent Live on April 17)

In a recent post at Slate, writer Matt Yglesias responded to the somewhat fatalistic tone of coverage around the recent Pew report on the state of the media by arguing that as news consumers, we are better off now than we have ever been, thanks to social media and other forces. And it is easy to see how that is the case for certain topics and certain parts of the world – but as Dan Mitchell pointed out in a rebuttal to Yglesias, it isn’t the case for much local coverage of things like municipal affairs and public-policy topics.

So what happens to that kind of coverage as newspapers shrink and even die? If all the things that have subsidized that kind of journalism have been removed – the car ads and travel writing and so on – all these papers are left with is the kind of content that advertisers aren’t interested in and readers don’t want to pay for. What then? ProPublica and the Texas Tribune are interesting publicly supported models, but how scalable are they? Is every state or region going to have one?

Will some form of “citizen journalism” be able to fill this gap – whether it’s local bloggers or some kind of automated Twitter feed etc.? Perhaps. Will newspapers use outsourced services like Journatic or even robot journalists like Narrative Science? In all likelihood it will be a combination of all of these, and possibly other things we haven’t even thought of yet. At this point, the answers are a whole lot murkier than the questions.

Post and thumbnail image courtesy of Flickr user George Kelly and Jan-Arief Purwanto

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Celebrity break-up rumors are a dime a dozen, and a dime is more than they are usually worth. Just last week country music power couple Blake Shelton and Miranda Lambert joked about rumors that their marriage was falling apart.

This week’s celebrity break-up story involves Malcolm-Jamal Warner and Regina King. US magazine is reporting that Warner and King have split up after two years of dating. The publication’s unnamed source stated that Warner “wasn’t feeling it anymore.”

Warner has not responded to the rumors, but King was quick to challenge parts of the story via her Twitter feed. Though she seems to acknowledge the break-up, she takes issue with US reporting that “it wasn’t the most amicable of partings,” saying “Me & @MalcolmJamalWar are good.”

Follow @ReginaKing

Regina King
@ReginaKing

Hey everybody PLEASE don’t believe everything you read. Me & @MalcolmJamalWar are good. Life happens. Forward motion. Godspeed

 Reply  ·  Retweet  ·  Favorite
4 hours ago via WhoSay · powered by @socialditto

Warner rose to fame in the 80s and 90s as Theo Huxtable on The Cosby Show. He now stars as Dr. Alex Reed in the BET show Reed Between the Lines and has a recurring role in the NBC TV show Community. King, best known for her roles in the TV show 227 and the movie Jerry Maguire, now stars in the TNT cop show Southland.

During Sony’s big PS4 reveal show, Blizzard popped up on stage to announce that it was returning to console development. The prolific developer announced that it would be porting Diablo III to the PS3 and PS4, thus crushing my hopes of ever seeing a return of The Lost Vikings.

Casting my own bitterness aside, I recognize that Diablo III coming exclusively to Sony’s platform is a big deal. As such, there will be a lot of scrutiny applied to the project as many PC players didn’t exactly have high praise for the title. The game was already suspected of being built around consoles, however, so console players lacking a PC gamer’s superiority complex may get a kick out of it.

In other Blizzard news, the developers crushed the dreams of Warcraft fans everywhere by announcing a trading card game instead of a proper installment of the venerated real-time strategy series.

Watch the West Wing Week here.

Middle East Trip: On Wednesday, President Obama embarked on a five day journey to Israel, the West Bank, and Jordan. The President began his visit with an arrival ceremony at the Ben Gurion airport followed by a visit to an Iron Dome defense battery in Tel Aviv. In the evening, President Obama flew to Jerusalem to talk with Israeli leaders and joined Prime Minister Benjamin Netanyahu for a working dinner.

On Thursday, the President visited the West Bank, where he held meetings in Ramallah with Palestinian Authority President Abbas and Palestinian Authority Prime Minister Fayyad, and attended a cultural event at Al-Bireh Youth Center. The day also included a tour of the Israel Museum and a speech from the Jerusalem International Convention Center.

The President wrapped up his busy day at the residence of President Peres for a dinner in Jerusalem. Check back this weekend for coverage on the rest of President Obama’s Middle East Trip.

Watch some of the President’s Trip Now:

• President Obama Speaks at an Arrival Ceremony in Israel
• President Obama Speaks to the People of Israel
• President Obama Holds a Press Conference with President Abbas of the Palestinian Authority
• President Obama Holds a Press Conference with Prime Minister Netanyahu of Israel

read more

Google has uploaded a new webinar about Enhanced Campaigns to YouTube. Advertisers with a half hour to spare would probably do well to check it out. This one specifically deals with Google Shopping and Enhanced Campaigns.

Earlier this week, Google announced new ValueTrack parameters for Enhanced Campaigns.

Earlier this week, Google introduced the world to the Realtime API for Google Drive. The new API allows developers to integrate the real time collaboration seen in Google Drive documents into apps. It opens up all new possibilities in apps like code builders and photo editors by allowing multiple users to interact with the app at once.

If that sounds exciting to you, you’ll definitely want to check out Google’s latest Realtime API tutorial:

During this session we’ll show how to build a complete JavaScript application that uses the Google Drive Realtime API to sync changes in a text document between two HTML elements.

Earlier this month, Aurora shooter James Holmes appeared in court sporting a huge beard. Now, rumors have begun to surface claiming that the man has converted to Islam.

According to a report in the Daily Mail, the rumor first surfaced in the tabloid publication The National Enquirer. An unnamed “prison source” allegedly told the Enquirer that Holmes has converted to Islam, prays five times a day, eats only halal food, and studies the Koran. The source is quoted as saying Holmes now believes his shooting rampage was part of “his own personal jihad.” The rumors also hold that Holmes’ fellow muslim inmates are not happy with his alleged conversion, as they don’t want the religion to be associated with his crimes.

Holmes is currently on trial for the shooting that took place at an Aurora, Colorado movie theatre in July 2012 during a showing of the move The Dark Knight Rises. He allegedly entered the theatre wearing a gas mask and shot canisters of tear gas into the crowd. He then shot into the crowd with a shotgun, semi-automatic rifle, and handgun. 12 people died and 58 others were injured.

The rumors of Holmes’ religious conversion sound a bit sketchy. If true, though, they could be an indication of Holmes’ mental health, which has been called into question. Of course, the rumors could just be false, or Holmes could simply be trolling everyone.

Yahoo announced today in a help forum that it is shutting down Yahoo Messenger in Yahoo Mail Classic. The company writes:

At Yahoo!, we’re focused on making your daily habits more inspiring and entertaining. That means we’re constantly reviewing our products and experiences and in some cases, have to make tough decisions to no longer support a product.

After much thought, we have decided to shut down Messenger in Yahoo! Mail Classic by March 22, 2013. This means that you will no longer be able to send IMs to your contacts from Yahoo! Mail Classic.

Yahoo suggests that you upgrade to the new Yahoo Mail, where Mesenger continues to be available or use the Yahoo Messenger client.

(via Digital Trends)

Carriers seeking greater spectrum holdings will get a boon from the government in about 18 months. Today the FCC gave notice that it will hold a spectrum auction next September. It should give carriers an opportunity to flesh out their 4G networks, or perhaps prepare for the next wave. After all, that’s what 2008′s spectrum auction mostly provided.

What was expected to be a heated bidding between the titans Verizon and AT&T turned into a run for Verizon. They picked up the majority of the C block, which afforded them enough reserve spectrum to build out their 4G LTE network. AT&T mostly picked from the lesser blocks, which in turn hurt regional providers.

There were some wins for smaller providers then, as Cricket and MetroPCS picked up enough spectrum to expand a bit. But overall the spoils went to the giants. It’s difficult to expect anything different this time around. They’re the ones with the money, and they know the value of spectrum. It’s unlikely they let this opportunity pass them by.

It’s easy to forget, but spectrum is a finite resource. If we opened all spectrum to all carriers, we would have mayhem. That’s why the FCC is charged with delegating it in a fair, and lucrative, manner. Carriers understand that they have limited opportunities to pick up new spectrum holdings. That’s why everyone expects the titans to pick up the lion’s share.

Yet that’s not quite what happened back in 2008. It appears that AT&T backed off, opting out of a bidding war with Verizon. Letting Verizon have its way with the C block certainly gave its biggest competitor an advantage. But AT&T played it conservatively, picking and choosing spectrum from the lesser blocks that helped complement its network.

One of the keys at that point, though, was AT&T’s acquisitions of a few regional carriers. They gained spectrum from those holdings, meaning they didn’t need the big block of spectrum in the same way Verizon did. So in a way they both won. AT&T fortified its own holdings, while Verizon made a big play. We could certainly see something similar play out in 2014 as well.

There are a few regional carriers still on the table. MetroPCS could be off the table, as we’ll soon see a vote of shareholders for the T-Mobile merger. But there is still Cricket, plus a number of regional carriers such as Cincinnati Bell and US Cellular. Rather than risk a bidding war with another billion dollar company, AT&T or Verizon could go down the acquisition path, picking up spectrum that way and avoiding large-scale bids.

At this point, though, everything is speculation. The auction itself is not even set in stone; the FCC merely informed the National Telecommunications and Information Administration that it intends to hold it. But given the necessity of additional spectrum, it’s likely this will occur. It’ll be interesting, at least, to see how it all breaks down and how it benefits the carriers.

The post FCC Will Auction Off New Spectrum in 2014 appeared first on MobileMoo.

The Galaxy S III was Samsung’s flagship device last year, and as such, carried a flagship device price tag. For those who wanted the S III experience minus the price, Samsung released the Galaxy S III Mini late last year. A recent leak suggests that Samsung will be doing it again for the Galaxy S 4.

SamMobile got the scoop on the Galaxy S 4 Mini after spotting a few images of the device on @ErmEchkiN’s Twitter feed. Much like its predecessor, the Galaxy S 4 Mini will presumably be a smaller S 4 with paired down specs so it comes in at a cheaper price.

In the below image, you can see the Galaxy S 4 Mini on the far right compared to the Galaxy S 4 and the Galaxy S III:

So what kind of specs can we expect out of the device? The current rumors suggest that it will have a 4.3 inch display and a 1.66GHz dual-core CPU. There’s no word yet on the other specs. The device will be running Android 4.2.2 though. It will also come in single-SIM and dual-SIM formats for all you carrier hoppers and world travelers.

The current rumors state that we can expect to see the Galaxy S 4 Mini in stores in either June or July. The Galaxy S 4 is expected to hit stores sometime during the second quarter so there hopefully won’t be much time between the launch of the Galaxy S 4 and S 4 Mini. A few months later, Samsung will reportedly unveil the Galaxy Note III in September.

It seems that Samsung will be staying busy in 2013. It will be interesting to see if the company will be involved in any more Nexus projects with Google as well after its Galaxy Nexus and Nexus 10 were so well received by consumers.

[h/t: Droid Life]

Sony’s Xperia Z smartphone is starting to see its first major firmware update hitting devices out in Europe. The update seems to bring the firmware to version 10.1.A.1.434 and is only available for a minority of the devices so far. While there’s no change log of what the update brings, it’s widely speculated that this update addresses that nagging issue which causes devices to go through an unintended slumber, but we won’t know for sure until Sony gives up the information we’re all looking for.

If you’re an owner of the Xperia Z and living in Europe, be sure to connect your phone to your computer using Sony’s PC companion app and check for the download today.

source: XDA
via: Android Central

Come comment on this article: European models of the Sony Xperia Z reported to be getting a firmware update

Google announced today that it is inviting all Google Analytics users to use Universal Analytics, which it first announced in October for large enterprise and Premium customers and those who want to work with API.

“The new tools offered by Universal Analytics via the new Measurement Protocol (an API that enables you to send your data to Google Analytics) can help you measure the how people actually become and remain loyal customers,” Google said at the time.

According to Google, the benefits of using Universal Analytics to businesses are: understanding how customers interact with your business across many devices and touch-points, insights into the performance of your mobile apps, improvements in lead generation and ROI by incorporating offline/online interactions, and improved latency on their sites by reducing client-side demands.

The company shares this testimonial from PriceGrabber:

Universal Analytics can be implemented with the new analytics.js JavaScript for websites, Google’s iOS and Android SDKs for apps, and the Measurement Protocol for everything else. The developer guide is here.