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June 16, 2008
The Associated Press, Copyright, and the Blogosphere
The Associated Press has announced that it will be developing guidelines for the quotation of its articles in blogs. According to the New York Times:
The Associated Press, one of the nation’s largest news organizations, said that it will, for the first time, attempt 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.The A.P.’s effort to impose some guidelines on the free-wheeling blogosphere, where extensive quoting and even copying of entire news articles is common, may offer a prominent definition of the important but vague doctrine of “fair use,” which holds that copyright owners cannot ban others from using small bits of their works under some circumstances. For example, a book reviewer is allowed to quote passages from the work without permission from the publisher.
This statement comes on the heels of the AP's sending a letter to the Drudge Retort to remove quotations from AP stories that ranged from about 40 to 80 words. These weren't very big excerpts. The AP later backtracked a bit, claiming that its letter was "heavy handed," but it has not withdrawn the takedown letters to Drudge. According to the NY Times article: "The Associated Press believes that in some cases, the essence of an article can be encapsulated in very few words."
Is creating a policy to limit the quotation of articles a wise move by the AP? It seems to me that this is not a particularly smart decision. I'd be surprised if the discussion of news articles in blogs impaired the market for those articles. What, exactly, is the harm? Nowhere in the NY Times story did the AP articulate how the quotation of its stories is harming it. The AP vice president offers the following reason: “As content creators, we firmly believe that everything we create, from video footage all the way down to a structured headline, is creative content that has value.” Okay, so it has value, but so does nearly all creative content.
If anything, discussion of articles in the blogosphere enhances the attention a news organization will receive, as well as encourages more people to read the article. The AP says that it doesn't want to stop people from quoting its articles very briefly and linking to them; it wants to limit how much bloggers quote. The difficulty here is that AP stories quickly disappear from the Internet, so links to full articles go dead after a week or two. The New York Times has a much more enlightened policy, encouraging bloggers to use and link to its articles by offering a permalink that will never go dead.
The devil, of course, will be in the details. How restrictive will the AP policy be? My inclination is to avoid all AP articles and quote other more blogger-friendly news sources. I don't want to bother having to count words, or figure out what percentage of the piece I'm supposed to quote. There are other news organizations that I hope will be happy to have the blogosphere's attention.
Posted by Daniel J. Solove at June 16, 2008 10:15 AM
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Comments
I'm more troubled by the notion that this "may offer a prominent definition of the important but vague doctrine of 'fair use.'" Yes, perhaps *a* definition, but why should the copyright owner's definition be a probative one? By what authority is AP setting "guidelines" for rights created by statute?
The types of fair use involved here also involve free speech issues. Your analysis speaks only in terms of economic harm, but that's way too narrow a lens for this issue. There's also an attempt by private interests to limit the free speech rights of others, which moreover involves an obvious conflict of interest.
Posted by: A.J. Sutter at June 16, 2008 11:09 AM
I think a lot should depend on the profitability of the secondary user of the material. A struggling, non-profit blog should be treated much differently than, say, Google News.
Posted by: Frank at June 16, 2008 12:48 PM
Maybe the AP is overreaching, but they have a right to reach. And Jim Kennedy's a good guy to the point person on this.
Frank wrote: "A struggling, non-profit blog should be treated much differently than, say, Google News."
I think the blog post above originally said "Drudge Report" -- it appears to be now corrected to "Drudge Retort." I had once thought that the latter one actually reviewed & rebutted content from the former, but it does not-- so I'm curious why Matt Drudge never sued the latter for brand dilution. (You wouldn't be happy with concurringopinions.net, would you?)
Both Drudges take ads (natch, as do many nonprofit media), and neither I suppose is a 501c3. Drudge Retort also resembles more a "link blog" which just gives an excerpt with no editorial commentary. And in that sense it resembles a splog. So if we can go after splogs based on copyright infringements, why not seek to restrain things-that-resemble splogs?
Also, your "inclination" is now a "boycott" thanks to the knee-jerk response of a more prominent lawyer-blogger.
My sense is that these blog boycotts are usually more bark than bite. See my analysis of the TimesSelect "Rejectors".
Posted by: Jon Garfunkel at June 16, 2008 01:34 PM
The situation is a little complicated. First of all, if you look at what the dispute is over -- specifics here:
http://www.cadenhead.org/workbench/ap-dmca-summary
it appears to be links to and quotes from AP items that have already been republished on major news websites. I would think that AP has already made MOST of its money off these pieces by the time they are published by licensees.
I say "most" because I don't know what if anything AP makes off of its archives. I do know this much -- when I try to license AP news stories for my Internet Law class packet, the cost is ludicrously expensive. That indicates that either (a) AP makes a ton of money off its archives (if so, where? I haven't seen old AP stories anywhere); or (b) they have no idea what their archive is worth and are extremely wary of cannibalizing it, whether through licensed uses by professors or unlicensed uses by bloggers.
If the archive is a money-maker, then it would at least make economic sense that AP would want to prevent a blog or set of blogs from, essentially, compiling an index of all published portions of its back catalog. I'm not sure I agree with Dan that these stories disappear quickly; if they are part of the printed newspaper for example, then I think they might stay on the newspaper's site permanently. Of course, at most this would affect only one portion of the fair use analysis, the effect on the potential market, so it's not determinative either way.
Posted by: Bruce Boyden at June 16, 2008 02:02 PM
Many of the blawg posts on the AP brouhaha jump straight into a fair use debate and the wisdom or foolishness of AP's licensing.
But wait - why? Over at Professor Goldman's Technology and Marketing blog, I took as stab at pointing out that there might not be much of a copyright to 'fairly use' or license.
http://blog.ericgoldman.org/archives/2008/06/when_breaking_n.htm
'Fair use' presumes a copyright. At least as to the headlines, and likely as to the factual ledes that are the parts quoted, there's just no protected right...
Posted by: Ethan at June 18, 2008 04:19 PM
