The AP, "fair use" and bloggers Posted by: McQ
on Monday, June 16, 2008
New media vs. old media. And, frankly, I've wondered when this would happen.
Last week the AP filed a number of "take down" notices against the Drudge Retort, a leftist parody site of the well-known Drudge Report. The reaction of the blogosophere was swift and not to kind.
The reaction has AP rethinking its position on the matter and according to the NY Times, attempting to "define clear standards as to how much of its articles and broadcasts bloggers and Web sites can excerpt without infringing on The A.P.’s copyright."
Rogers Cadenhead, the owner of the Drudge Retort says:
“There are millions of people sharing links to news articles on blogs, message boards and sites like Digg. If The A.P. has concerns that go all the way down to one or two sentences of quoting, they need to tell people what they think is legal and where the boundaries are.”
I agree.
So where does AP think those "boundaries" are?
On Friday, The A.P. issued a statement defending its action, saying it was going to challenge blog postings containing excerpts of A.P. articles “when we feel the use is more reproduction than reference, or when others are encouraged to cut and paste.” An A.P. spokesman declined Friday to further explain the association’s position.
I assume "more reproduction than reference" means whole articles are cut and pasted to blogs. I can understand AP's objection to such use. But I'm at a loss to understand what is meant by "when others are encouraged to cut and paste". Makes no sense to me.
I can certainly appreciate AP's desire to protect its content. What I don't appreciate is heavy-handed attempts to do so. AP, after last week's reaction by the blogosphere, seems to understand that as well:
“We don’t want to cast a pall over the blogosphere by being heavy-handed, so we have to figure out a better and more positive way to do this,” Mr. Kennedy said.
However they still haven't withdrawn their demand that the Drudge Retort take down the 7 items they've identified.
So where are we on this?
And he [Jim Kennedy, vice president and strategy director of The A.P] said that he still believes that it is more appropriate for blogs to use short summaries of A.P. articles rather than direct quotations, even short ones.
“Cutting and pasting a lot of content into a blog is not what we want to see,” he said. “It is more consistent with the spirit of the Internet to link to content so people can read the whole thing in context.”
In other words, don't use our words, link to us.
Of course, most bloggers always link to the source. But quotes from people, such as that from Kennedy, should be given in their original form so as to provide context and avoid misquoting. That requires a bit of cut and paste from the original source.
However, given Kennedy's statement, AP wants links and summaries only.
We finally get to the essence of the conflict (and we all knew what it was from the beginning) in the final few paragraphs of the NY Times article:
Even if The A.P. sets standards, bloggers could choose to use more content than its standards permit, and then The A.P. would have to decide whether to take legal action against them. One important legal test of whether an excerpt exceeds fair use is if it causes financial harm to the copyright owner.
Says Kennedy:
“We are not trying to sue bloggers,” Mr. Kennedy said. “That would be the rough equivalent of suing grandma and the kids for stealing music. That is not what we are trying to do.”
Obviously AP would prefer not to sue bloggers as it would make them the heavy in such a case. So it is, instead, using the age old trick of legal intimidation instead.
Of course one of the things the blogosphere can do very quickly is raise the visibility on such incidents and tactics, usually to the detriment of the company doing the suing. That's what is happening now to AP and that is why AP is doing a whole bunch of waffling and dancing at the moment.
OTOH, I think, within the law, the AP has every right to declare its interpretation of "fair use" and if necessary, test it out in court.
However, until they issue such guidelines their interpretation of the fair use law is no more valid than anyone else's.
So, until they do issue their guidelines, I won't be using, quoting or linking to any AP stories. And, depending on what they decide they're willing to live with in terms of "fair use", that self-imposed ban may continue indefinitely.
If I deem their guidelines to be fair (after all they have a right to protect their content), I'll be glad to follow them. If not, we'll find other content providers to quote and to which to link.
However, until they issue such guidelines their interpretation of the fair use law is no more valid than anyone else’s.
Actually, even if they do, it still isn’t any more valid than anybody else’s. "Fair Use" derives from the First Amendment, because without that provision it is generally agreed that copyright law would conflict with the First Amendment in general. (Recall that copyright has constitutional status, but if it conflicts with the First Amendment, the 1st wins since it is an amendment.)
While a judge might take a declaration by the AP into account if it was near the line, they have no true power to decide what fair use is, and a judge might equally decide to completely ignore a declaration by the AP. ("True power" is a fuzzy term here, please grant me the benefit of the doubt. Obviously the AP has lawyers and such, but I’m referring to a nebulous concept something like "who would properly win in a fair legal fight".) That’s up to Congress and the Judicial branch.
It is my understanding that copyright law explicitly allows quoting excerpts from copyrighted material. If so, I don’t think AP has a chance in court. Like you said, it’s bluff. Specifically, from the 1976 Copyright law, section 107 (Fair Use);
"...the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." http://www.copyright.iupui.edu/highered.htm
It is my understanding that copyright law explicitly allows quoting excerpts from copyrighted material. If so, I don’t think AP has a chance in court.
Yes, and no.
Yes, you’re correct in your understanding, and yes, if it ever got to court, thing would fall on it’s ass, at least at the moment. Two issues, however, raise their heads:
1: How many bloggers have the financial ability to fight off sucha suit, regardless how defeatable? 2: Such an ability to defeat such a lawsuit assumes that the laws stay the way they are. We now see a democrat congress which is desperate to silence the right, already trying to impose ’fairness’ on the broadcast industry again. The biggest voice the right would have remaining, following such a reimposition, is blogs. Does anyone consider once the lion eats the other guy, he won’t come for us next time he’s hungry?
I like the reference that some had made that bloggers were supposed to summarize the AP report rather than cut-n-paste it. Boy can I see a lot of spin applied to AP stories (as if AP doesn’t spin their own stories enough already) under that regime.
