Fair Use And The Associated Press

By Cernig

Bloggers beware, Associated Press are on the warpath, starting bogus copryright suits against those linking and quoting even the merest fraction of an AP news report. Roger Cadenhead of the Drudge Retort:

I'm currently engaged in a legal disagreement with the Associated Press, which claims that Drudge Retort users linking to its stories are violating its copyright and committing "'hot news' misappropriation under New York state law." An AP attorney filed six Digital Millenium Copyright Act takedown requests this week demanding the removal of blog entries and another for a user comment.

The Retort is a community site comparable in function to Digg, Reddit and Mixx. The 8,500 users of the site contribute blog entries of their own authorship and links to interesting news articles on the web, which appear immediately on the site. None of the six entries challenged by AP, which include two that I posted myself, contains the full text of an AP story or anything close to it. They reproduce short excerpts of the articles -- ranging in length from 33 to 79 words -- and five of the six have a user-created headline.

...In a June 3 letter, AP's Intellectual Property Governance Coordinator Irene Keselman told me:

... you purport that the Drudge Retort's users reproduce and display AP headlines and leads under a fair use defense. Please note that contrary to your assertion, AP considers that the Drudge Retort users' use of AP content does not fall within the parameters of fair use. The use is not fair use simply because the work copied happened to be a news article and that the use is of the headline and the first few sentences only. This is a misunderstanding of the doctrine of "fair use." AP considers taking the headline and lede of a story without a proper license to be an infringement of its copyrights, and additionally constitutes "hot news" misappropriation.

But six of the seven blog entries have their own headlines, not the AP's one. One blog entry quotes 18 words from the story and a 32-word quote by Hillary Clinton under a user-written headline. Another reproduced the last two paragraphs from a linked Fox News article written by AP.

Some AP member sites encourage this kind of reuse. Yahoo News, the source for two disputed stories, invites bloggers to use items from its RSS feeds. USA Today, the source for two others, includes a browser widget alongside articles that facilitates their submission to Digg, Mixx and other sites.

It's pretty clear AP is just using its status as a big dog to bark at poor bloggers it believes cannot afford litigation costs. Unfortunately, the onus of proof is on the blogger to prove "fair use".

Well, that's kind of bullying needs some pushback. Effective immediately, Newshoggers is boycotting AP's content, including that from other sites that syndicate their stuff. We will find other sources - Reuters usually has the same stories and syndicates our BlogBurst feed on its websites without a problem - or we simply will find a different story to blog about. We urge you to join us in boycotting these bullies.

Update: Jeff Jarvis: "bloggers, unless the AP recants and apologizes to Cadenhead, I urge you to avoid linking to the AP and to link to reporting at its source."

An AP apparatchik appears in Jarvis' comments offering lame excuses - " our interests in that regard extend only to instances that go beyond brief references and direct links to our coverage" - that nowhere near approach the truth of the AP's DMCA takedowns of 33 word excerpts at the Drudge Retort.

And Scott Rosenberg's got the same apparatchik, Jim Kennedy, VP and Director of Strategy for AP, emailing him exactly the same rubbish - word for word. Do you think that AP might be considering the old adage "act in haste, repent at leisure"?

Update 2: Thanks to Atrios for the link, as he names AP his "Wankers of the Day".

Others are saying a boycott is in order too. AP can't bully bloggers with spurious fair use complaints if no-ones linking to them. Among those refusing to be bullied are: Newshoggers, Jeff Jarvis' Buzz Machine and of course The Drudge Retort. And:

Culture Kitchen

Reno And Its Discontents

West Virginia Blue

Kyle at Comments From Left Field

The Impolitic

Green Mountain Daily

Greatscat!

Afarensis

Update 3: The list continues here with UnAssociated Press

Comments

[James]

Agence France-Presse (AFP) has terrific coverage of US political and national news as well.

[Cernig]

McClatchy too.

[Libby]

I can't believe it's not fair use as the site has excerpted the items although I have noticed that sometimes there's a disclaimer at the bottom of the AP pieces saying none of it can be reproduced. Still, I think the Retort could win this in court.

Anyway, it proves my theory that the legacy media is dying because the owners don't understand the intertubes. They treat us like an enemy that needs to be defeated instead of collobrators that enhance their work.

I mean how stupid is it to sue because someone is linking to you? That's the whole point. They just don't get it.

[Respectful Dissent]

Talk to the Electronic Frontier Foundation. This is right up their alley.

[spocko]

Well, I've gone through this big corporation deciding that you are violating their copyright and then rattling the saber.

Boycotts are very hard to pull off especially since they don't really CARE if you don't use their content.

I found that in my interactions with ABC Disney Radio that the one thing that they respond to is loss of money.

I'm sick of corporations using bogus copyright claims to beat up on people weaker than them.

[The Oracle]

"Fair Use" once was established policy, until Reagan and the Republicans in the 1980s succeeded in getting rid of the Fairness Doctrine, as part of their mad quest for a "permanent Republican majority."

After gutting the Fairness Doctrine, conservatives started buying up as much of the American news media (and radio and television stations) as possible in an attempt to turn all information outlets in America into right-wing propaganda, which would have been difficult to accomplish with the Fairness Doctrine in place.

We are seeing the bitter fruit from this corrupt conservative (anti-American, almost Communist sounding) policy hatched decades ago, with purely partisan news channels like Fox and much of AM radio inundated with right-wing talking points spouted by right-wing hosts.

Democrats in Congress and a Democratic president should reinstate the Fairness Doctrine and the Fair Use policy, which conservatives hate, because it gets in the way of their totalitarian goals for our liberal, democratic society.

The result of this nefarious perversion by conservatives of our nation's information resources has been a deadly, costly war in Iraq (based on conservative lies passed on to them and through them to us from the Bush administration) as well as numerous other instances where unchecked, factually-challenged, right-wing spin has fooled a whole lot of people into believing pure crap, and consequently hurt our nation and many people in the process.

Enough is enough. Elitist, effete snob Republicans have never liked a level playing field.

[cab91]

As I always say: You can't spell "crap" without AP.

[devtob]

Fair use, which is a major part of the 21st-century First Amendment, applies to the AP, too.

No matter what their harassing lawyers say.

[bz]

countersue!

file charges of frivolous litigation, for punitive damages and seek to have AP attorneys sanctioned

[Hal]

Well, glory be. There's actually a use for Jeff Jarvis after all.

[ronin]

They'd be better off thinking of how they can benefit from the internet instead of fighting this.

And Mc Clatchy is far superior to AP, anyway.

[Duckman GR]

Frankly, the AP is just another corproate whore for the gop, I try never to use them unless it's to highlight their crappy reporting.

Worse than a boycott, I ignore them.

[DrBB]

AP to World: "We demand that you do not link to us!"

Now there's an Internet strategy. How come those smart guys at Google never thought of it?

[Libby]

Spocko is the expert here on corporate harassment and he's right, it would be more effective if we could figure out a way to cost them money.

I was also thinking that it would be good if EFF would take this to court. I would think they'd be interested.

[Nellcote]

Coincidence or paranoia that Rupert Murdock joined the board of directors of AP in April?

[Sam]

This is all about Google News. The AP (as well as every other content creator on the planet) wants to force Google to give them a cut of their revenues so they are trying to establish precedent by going after the little guys. I'm sure that once they reach an agreement with Google this sort of harassment will stop.

[Richard Kastelein]

Actually the petition is just background noise. The site unassociatedpress.net is more about helping to spread a meme and hopefully go viral - especially in the case that the MSM picks it up like they did when Chris Floyd and I put out www.thankyouqwest.org.

The MSM seems to love sites dedicated to cause célèbres such as these.

[Richard Kastelein]

Oh and by the way - eyeballs = money. The more bloggers that boycott them the less traffic they will have. The less traffic they have the less value they become.

[Evil Pundit]

Spocko is being deceptive.

The Fairness Doctrine had nothing to do with Fair Use under copyright law. It was all about forcing radio stations to carry opposing viewpoints. This was enforced by the FCC.

Fair Use provisions are a completely different issue, enforced under copyright law.

Shame on Spocko for lying to score political points.

[Evil Pundit]

Oops, I misread the way these posts are labeled. My comment should be directed to "The Oracle", not to Spocko.

I apologise to Spocko.

[MrSerious]

I will start a blog just so I can boycott them!

[Phil]

Hey Oracle, I don't know where you went or go to school, but you should probably get your money back.

The affirmative defense of Fair Use, has absolutely nothing to do with the Fairness doctrine in any way. And I think it was Justice William Brennan, who nobody would consider a conservative, who said in the Supreme Court Case FCC v League of Women Voters, 468 U.S. 364 (1984), that the Fairness Doctrine was "chilling speech"

There are four factors to look at when considering whether a use of copyrighted material is fair.
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

3) pretty clearly shows that the use should be considered fair, and 4) actually probably has a positive effect on the market for the copyrighted work, since the AP gets more traffic than they would have otherwise. I don't think these bloggers are making much money off the excerpts, and so is not a "commercial use" per se, which would militate for a fair use finding. 2) is a bit more complex but probably would support a fair use finding as well.

[Glenn]

These guys at AP have the opportunity to get free links and wider distribution of content to people who are smart enough to own and use computers and they're going to sue the bloggers providing the pipeline. Smart, real smart.

[sonicfrog]

Phil et al are right - Fairness Doctrine and Fair Use are two different issue.

[chicopanther]

Who/what is the Associated Press? I stopped believing anything they publish years ago, as their "reporting" is too full of opinion and not fact.

-- chicopanther

[Martya]

Does the AP's limited view apply to the "news" stories they make up?

[Diana Hsieh]

Even when the right side prevails, these kinds of unjust lawsuits are huge sinkholes for time, money, and happy thoughts. (Sadly, I speak from experience.)

So to hell with AP. If they don't want traffic by discussion and linking, they won't get it from me! (In fact, I'm removing their headlines from "My Yahoo" now...)

[Jim]

For those not personally being sued, this appears to be a cause justifying a boycott of AP. Not simply choosing to not use/cite them, but by (1) explicitly denouncing them for such action, and (2) promoting the work of their competition.

Whenever I cite an external source under fair use, I view it as a promotion of that source. CNN, over the operations of its Baghdad and Cuba bureaus, has been excluded from my favor, and so too now is AP.

I, for one, follow links and respected blog citations enhance my evaluation of the source being cited. Frankly, the MSM needs more testimonials it enhance their reputations.