AFP v. Google News Redux–AP v. Moreover

By Eric Goldman

Associated Press v. Moreover Technologies, Inc., 07 CIV 8699 (SDNY complaint filed Oct. 9, 2007)

I don’t understand Moreover. From their website, they describe themselves as:

the premier provider of real-time news, current awareness and business information, pioneering the way online news is gathered, refined, categorized and delivered. Moreover products are trusted by hundreds of leading organizations to deliver real-time current awareness and actionable news intelligence that drives informed business decisions.

Huh? Someone needs to rein in the marketing department. In any case, I glean that Moreover is a news aggregator, building a real-time news database in a manner not dissimilar to Google News–they send robots to collect information in near real time, index the content and then publish extractions. However, it looks like Moreover is focusing on B2B solutions rather than Google’s consumer-facing B2C service. I’m not sure if that will make a legal difference.

After a failed licensing negotiation (see complaint para. 55), the AP decided that it would rather make war, not love, and sued Moreover for gathering and republishing AP content. The AP claims the following causes of action: hot news misappropriation, copyright infringement, removal of CMI (17 USC 1202), Lanham Act 43(a) false association, NY trademark infringement, and trespass to chattels. These are generally the appropriate claims (although I’m surprised they couldn’t find a breach of contract to allege), but there are a few odd claims, like the false association/trademark claim based on the fact that Moreover publicizes that it indexes AP content (this is a little like truthfully announcing third party branded ingredients–see Mark McKenna’s post on that topic); and the claim that VeriSign is responsible for the acts of its wholly-owned subsidiary and data supplier.

In most respects, this lawsuit raises the same issues as the AFP v. Google News lawsuit filed in 2005 and settled in April. However, unlike the AFP case, the AP put the hot news claim front and center. Also, the AP may have selected a more favorable venue than AFP did. By filing in a 2nd Circuit jurisdiction, this case will be governed by the Second Circuit’s rulings in v. Verio (trespass to chattels) and Motorola (hot news), both of which may be more favorable to AP’s case than the law of other circuits. On the other hand, as I’ve noted before, the AP makes its news available via RSS feeds, and this could raise some interesting questions about the scope of explicit or implicit consent granted by providing RSS feeds.

More generally, this case is yet another battlefront in the war between content producers and content aggregators over the scope of permissible aggregation. I’m not sure if this case will provide the last word on that topic, but we would significantly benefit from more clarity about what constitutes legitimate aggregation.