A copyright battle between The Associated Press and an online news-clipping service is reaching a climax, and the case could have significant implications for fair use. AP sued Meltwater Group last year, arguing the "reputation management" company had a "parasitic business model" that violated copyright. Meltwater is defending the case, arguing that it is merely a search engine.

Meltwater News is a media-monitoring service that helps corporations track what's being said about them in press outlets online. The company boasts that it can "track keywords, phrases, and topics in over 192,000 sources from over 190 countries and 100 languages" throughout the day. It doesn't send its subscribers full articles, but does copy snippets and headlines then provide links to full stories—like Google News.

Last week, the nation's largest newspapers lined up to tell the New York federal judge considering the case that they support the AP. An amicus brief [PDF] was filed by The New York Times, The McClatchy Company, Advance Publications, and the Newspaper Association of America, which represents 200 newspapers around the country. In the brief, they argue that Meltwater isn't a search engine—it's a competitor.

The newspapers argue that Meltwater isn't a "search engine," but a competitor undercutting their own news-clipping businesses. In the brief, the publishers say that Meltwater is a threat to their own digital businesses, which are supported in part by revenue from "other publishers and users and aggregators." Those revenue streams cannot be "sustained if news organizations are unable to protect their news reports from the wholesale copying and redistribution by free-riders like Meltwater." They continue:

If the massive, systematic copying of expression engaged in by Meltwater is held to be fair use, the AP (and others) would lose not only the revenues that Meltwater and others of its ilk should have been paying, but also the revenue that other media monitoring services and aggregators have been and are paying for licenses, based on their correct understanding that the routine commercial copying of the amount of expression taken by Meltwater is not fair use. A holding of fair use here would evaporate those revenues in short order. ... By contrast, a decision that Meltwater's systematic, wholesale, daily commercial copying and reselling of the AP's expression into AP's existing and expected markets is not fair use would not impair Meltwater's ability to serve its customers. It would simply obligate Meltwater to pay for the expressive content that is central to its business, just as it (presumably) pays for other costs (rent, power, insurance) without stealing them, or demanding—on the basis of some imagined public interest—an entitlement to use them without payment.

A selective news search such as Meltwater can't be compared to a search engine, the brief argues. Clipping services have existed for decades. Originally, they remunerated the newspapers by buying multiple copies. After the creation of the photocopier, they started paying licensing fees via the Copyright Clearance Center.

Of course, Meltwater isn't providing customers with full copies of articles, like traditional press-clipping services did. But the newspapers argue it's cheating them by giving away "the most valuable expression news media create and market, namely headlines and their ledes." Meltwater customers don't want a just-the-facts report, but rather want to "gauge tone and resonance and detail."

The brief lists the differences between Meltwater and a news search engine. It notes that Meltwater:

carefully limits those to whom it delivers content (its paying clients who have contracted for its services), and is specifically targeted to and used for only business purposes;

sharply limits what it searches (news articles from a defined list of content providers), and uses that defined content on a regular, continuing, systematic basis, as opposed to the ad hoc searches undertaken through a search engine like Google;

defines precisely and advantageously (to its own business) what it delivers (news articles or the large chunks thereof), as opposed to links to third party servers on which content resides;

promises to always deliver the headline and the lede of responsive articles, along with additional content as well (depending on the client's order); and

produces click-through rates that are very substantially lower than those produced by other aggregators, suggesting that Meltwater is fully superseding AP (and its licensees) as the source for AP content (and newspaper content generally).

Meltwater actually opposed the filing of this amicus brief in the first place, arguing that the newspapers are too close to the action to be considered mere "friends of the court." The newspapers publish AP content and pay membership fees to the wire service.

However, late last week US District Judge Denise Cote allowed the brief to be filed and it's now part of the record in the case. Cote is considering the two sides' dueling motions for summary judgment, and a ruling could come anytime.

Briefs have also been filed in this case by the Electronic Frontier Foundation and the Computer & Communications Industry Association [PDF], a tech industry trade group that includes Google as a member. Both groups are supporting Meltwater.

This isn't the AP's first fight against an online news aggregator. It sued the Moreover news-tracking service in 2007. Later, it sued an outfit called All Headline News, forcing it to pay up and stop rewriting AP headlines and leads without permission.

In this case, the media companies are striving to make plain the differences between Meltwater and a search engine like Google News. But plenty of news services take the position that Google News is a copyright violator in its own right. Agence France-Presse sued Google in 2005, then settled two years later. Google may well have ended up in the same kind of conflict with the AP if it hadn't struck a licensing deal in 2010.

Disclosure: I have worked in the past for both The Associated Press and Agence France-Presse.