Jupitermedia sued eMarketer in a New York District Court on 13th
May, alleging copyright and trade mark infringement in respect of
the aggregator's use of advisory reports created by JupiterResearch
– despite the fact that, says Jupitermedia, its advisory reports
are available only to customers through custom order, subscription
or individual purchase and are not generally available to the
public.
Last week the research company announced that it had sent cease
and desist letters to eMarketer, claiming inducement to breach
contract and infringement of its copyright and database rights in
both France and the UK, where it expects to be ready to start legal
actions shortly.
"With regard to the JupiterMedia lawsuit about alleged copyright
infringement, we are fighting it aggressively, including the filing
of a motion for a speedy hearing," said eMarketer CEO Geoffrey
Ramsey on Wednesday. "In addition, we've filed a counterclaim to
Jupiter emphatically denying all allegations and affirming the
legality and propriety of our business practices."
"It appears that JupiterMedia is playing Goliath here, trying to
force eMarketer into changing its business practice through the
litigation process," said eMarketer's lawyer Edward Rosenthal. "We
are committed to defending eMarketer's position and confidant that
we will prevail."
EMarketer argues that facts, including Jupiter's numbers, are
not copyrightable. The reports issued by the company, in original
text written by its team of analysts and based upon facts gathered
and analysed by them, are therefore not in breach of any
copyrights.
The company is making fair use of the data it uses in its
reports, eMarketer continues. The company explains that it gathers
its data from publicly available sources, including search engines,
presentations uploaded to seminar and company web sites, trade
journals and published news reports.
The source of the data is clearly and prominently identified,
says eMarketer.
In addition, says the statistics provider, the practice of
aggregating public data and using its own experts to interpret that
data, sorting out the disparities and inconsistencies between
multiple sources, is similar to that already used in investment
banking firms, business and trade news publications.
According to commentators, the case may well shed light on the
degree to which facts gathered by one company can be published
on-line by another under US and European laws.
In the UK the law on database rights is contained in the
Copyright Rights in Database Regulations 1997. The UK Regulations
implemented into UK law the provisions of the 1996 EC Council
Directive on the legal protection of databases. The Regulations
provide protection to database owners from infringement of their
database rights. The only UK authority on the interpretation of the
1997 Directive is the case brought by the British Horseracing Board
against William Hill.
However, the law in this area remains uncertain in the UK as a
series of questions arising out of the case were referred by the
Court of Appeal to the European Court of Justice in 2002. The
judgment of the ECJ has not yet been issued but it is hoped that
when it is issued it will help to clarify the UK on database
rights.
