The Netherlands - DPG Media B.V.; Mediahuis Nederland B.V.; Mediahuis NRC B.V. v Knowledge Exchange B.V., trading as Howards Home, 30 October 2024

Claimants: DPG Media B.V.; Mediahuis Nederland B.V.; Mediahuis NRC B.V. ("Publishers") 

Defendant: Knowledge Exchange B.V., trading as HowardsHome ("HowardsHome")

HowardsHome operated a digital media monitoring service that processed approximately 30,000 signals per day derived from publicly available Really Simple Syndication feeds ("RSS Feeds"). In the alerts delivered to its customers, HowardsHome provided a hyperlink to the relevant publication, together with the title, a brief description, and, where publicly available, a thumbnail image. HowardsHome made these alerts accessible to its customers through a dedicated digital portal.

The alerts included, among other content, news items originating from the Publishers. HowardsHome is alleged to have offered its customers content belonging to the Publishers that was not obtained through licensed purchases or authorized distribution channels, but rather extracted from RSS Feeds available on the open internet or acquired by means of scraping the Publishers' websites. The Publishers contend that this conduct infringes their exclusive rights of reproduction and of making their works available to the public.

Publishers’ claim

The Publishers argued that HowardsHome infringes the press publishers' right, their copyrights, and their database rights by reproducing and making available snippets, thumbnails and hyperlinks. They submitted that any text and datamining ("TDM") defence should fail because they had made a valid reservation of rights. 

HowardsHome’s defence

HowardsHome relied on: (i) the statutory hyperlink exclusion and "very short extracts" exception; (ii) the quotation/press review exception; and (iii) the TDM exception, arguing that it had lawful access to publicly available materials and that the Publishers' robots.txt files only excluded certain AI bots and did not constitute a valid opt-out against its service.

Court’s Judgment

The court dismissed all of the Publishers' claims. 

Copyrights

The court assumed that the Publishers' works are copyright-protected and accepted that copying snippets and thumbnails can constitute reproduction and communication to a new public.    Nevertheless, HowardsHome's limited use (title, max. 150 characters, sometimes a thumbnail, with source attribution) fell within the quotation/press review exception. 

On the question of the rights reservation, the court held that, in the face of HowardsHome's reasoned contestation, the Publishers had insufficiently substantiated that text-and-data mining of their websites was expressly reserved in machine-readable means. HowardsHome disputed at the hearing that the prohibition on automated searching contained in the Publishers' robots.txt files was readable in robots.txt programming language, arguing that those files only excluded certain AI bots (GPTBot, ChatGPT-User, CCBOT and anthropic-ai) and did not constitute a general reservation of rights. The court therefore concluded that the bot used by HowardsHome was not appropriately denied TDM by the Publishers' rights reservation. The court confirmed that HowardsHome's reliance on these exceptions passed the three-step test of the InfoSoc Directive (2001/29/EC). 

Database rights

The database rights claim was dismissed on equivalent grounds, by reference to the TDM limitation. 

Press publishers' right

The court held that HowardsHome's hyperlinks fell within the statutory hyperlink exclusion and that the 150-character snippets qualified as "very short extracts".   The Publishers had not shown that such short fragments undermined their investment, harmed normal exploitation, or substituted for the original articles.