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The Associated Press, Copyright, and the Blogosphere

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5 Responses

  1. A.J. Sutter says:

    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.

  2. Frank says:

    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.

  3. 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”.

  4. Bruce Boyden says:

    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.

  5. Ethan says:

    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…