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.