Sunday, June 22, 2008

Associated Press in scuffle with bloggers (Drudge Retort matter)

In the fast few days, blows in a copyright scuffle between old and new media have been popping up like afternoon thunderstorms on the Internet. Recently, the Associated Press demanded that Rogers Cadenhead and his Drudge Retort remove a number of quicklinks to AP stories (especially some political ones) from its site. The links appear to consist of these components: the hyperlink itself, the full title, and often a few sentences from the story, usually (it seems) from the beginning.

The Washington Times reported this on Friday June 21 in a story by Jennifer Harper on p A4, “AP, bloggers clash over use of wire content.” Harper’s story opened by characterizing this incident as a “clash between traditional ‘old’ media and Internet-driven ‘new’ media”. The Times online link has a slightly updated version of the story here, “Blogger, AP meet about use rift.” (The Washington Times no longer prints a separate paper on Saturdays.)

Staci Kramer has a brief story in The Washington Post online from Friday June 20, “Drudge Retort’s Retort to AP: Personal Issue Resolved but ‘Larger Conflict’ Remains,” here.

The Media Bloggers Association (MBA) has a very detailed account “Back Story on How AP and Drudge Retort Come to Terms,” link here. Buzzmachine has an interesting interpretation (by Jeff Jarvis) of the controversy over the journalist’s “link layer” and the ethics of its use, here.

AP reportedly objects to bloggers copying their entire story titles (sometimes the titles themselves are long and convey some of the story). However, this practice would be no different than listing the name of a print newspaper story in a footnote or bibliography of high school of college term paper, pre-Internet. This is not plagiarism.

Many news services and television stations carry warnings that their stories may not be “rewritten” or “redistributed”. However, facts themselves in a story are not copyrightable, even though initial reporters may have gone to great effort to get a scoop (I think now of Sebastian Junger’s daring Vanity Fair piece right from Afghanistan).

Furthermore, many conventional media sources carry AP stories. AOL often does so, and includes additional disclaimers noting AP’s intellectual property rights. Often these stories disappear after a couple of weeks. Sometimes the original story cannot be easily found on AP’s own site. In such a case, if a blogger refers to an AOL or Yahoo! copy, the blogger will want to use the full title so that a visitor a couple months later (as with a search engine visit) can determine what the original content was in a new context.

There were also reports that AP was demanding that bloggers pay $2.50 per word for any quote exceeding four words in length. (One account of this story appears on Tech Dirt from about June 17, here.) The “fair use” doctrine well established in copyright law does not set specific length parameters for fair use, but encourages as case-by-case approach. Generally, copyright law does not appear to allow copyright owners to dictate their own parameters in terms of specific word counts or policies on links. There was a well known case on deep links in 2003 (Kelly v Ariba Soft). I had discussed this case in this blog on Feb. 7, 2006 and March 9, 2007 (please see the Archive links on this page).

Of course, one well known problem is the way the “safe harbor” provision of the Digital Millennium Copyright Act works. ISPs are encouraged to remove allegedly infringing content sometimes on flimsy claims. Speakers are supposed to be able to appeal, but it seems that in many cases they do not have the resources to fight back even against unjustifiable claims. This is a pervasive problem in American law as a whole, and makes a good case for comprehensive tort reform (and the adoption of “loser pays” systems as in Europe), although there are supposed to be some protections against abusive practices in the copyright law.

I sometimes wonder if this is not so much a battle of “fair use” from a content perspective, but is more of a turf and entry issue. In new media, it is possible for amateurs to distribute news, with their own added spin and interpretations. Older media may feel that this threatens their profits, and journalists employed in older media may feel pressure on their jobs. In a sense, this sounds like part of the larger “globalization” debate and it also ties into disputes that writers (as with the National Writers Union) have over royalty rights for Internet distribution of their work. Could the “manner of entry” (that is, use of “free entry”) by an amateur writer affect his or her claim to “fair use” if the original property holder believes that its revenue potential is affected by manner of entry? No one knows, but the pattern in court decisions so far (including the Supreme Court) suggests (to me, at least) that the mechanics of distribution (such as the Internet vs. bricks-and-mortar print) generally doesn’t affect intellectual property law (copyright or trademark, or even potential censorship cases like COPA, the Child Online Protection Act) as much as the actual content does.

Even so, in the MGM v. Grokster case (2005) concerning P2P and copyright infringement, the Supreme Court did indicate that a “business model” could be taken into consideration in determination of downstream liability if that “model” was predicated on the idea that infringement would inevitably occur.

I recall an email exchange during the Grokster period with Mark Cuban (Magnolia Pictures) in which Cuban said to me that he thought that the Grokster case really was about protecting old-fashioned turf. Even from the viewpoint of his own upstart movie company, he was concerned about it.

So is the AP trying to protect it’s turf and revenue model? AP itself has said that it needs control of its own owned content, as if that was an integral part of its property rights. But does that include making newbies “pay their dues” and potentially raising the barrier of entry?

Reports say that AP will publish a new “terms of service” policy for bloggers Monday (June 23).

Let me reiterate my own practice. I do give links to the original story (on AP or otherwise), and I try to find the most “original” link available. I usually state the author’s name and the full title in the sense that a term paper footnote would state them. For a newspaper I provide the print location and page if known. I provide some additional comments and perspective to “add value.” On blogs, I also believe that visitor comments add value (a contention that Drudge Retort and similar sites will make, too, even if they do not always add their own commentary to the quotes). I may restate some facts (they are not “property”) but I encourage the visitor to go to the original story for more facts (or purchase a print version of a newspaper if practical). Visitors should remember that stories do disappear or become archived, and that some newspapers charge (subscription or per story) for archives, and other sites require registration, sometimes with minimal personal information, before full content will be shown. Also, professional and medical sites often present abstracts that are free, but usually require purchase for full content.

Update: Monday June 23, 2008

I did find a news story, by Seth Sutel, dated June 20 giving the AP's side of things. The link is here. The AP refers (without making the link workable) us to another post by Cadenhead, here. The AP has not yet, as far as I know, released a formal revised AUP, but it claims that it will not try to impose it's own view of "fair use" and says that it is a not-for-profit organization itself.

The AP also provides this link for copyright "do's and don'ts." Note the objection to pasting content into a browser. It does mention "fair use" and gives this SIAA link. There is also a link to a discussion on permissions ("Copyright Permissions Demystified") by Lesley Ellen Harris of, here.

Update: June 27

Business Week has a disturbing article by Peter Burrows, June 26, posted on Tech Beat, "The Threat to 'Fair Use' in the Blogosphere, link here. Burrows points out that the DMCA puts microbroadcasters and ordinary bloggers "at the end of the food chain", often unable to enforce legitimate rights, because they haven't "competed" successfully with the bigger folks, who are not above using automated tools to track them down and bully them off the net. The DMCA seems to provide an example of what we call now a "sustainability problem." While the AP may have been right about Drudge Retort, the whole incident could expose other bloggers to automated tools that will not be able to apply "fair use" the way a human would. There is a real problem out there in the corporate publishing community as to whether "fair use" applies to amateurs. The law says it does, but the word doesn't seem to get around.

It's important to remember that publishers, including "amateur" bloggers, have the right to file counter notifications, and that illegitimate takedown notices can sometimes result in secondary liabilities for the complainants. Look at the DMCA policy for any major ISP (for for Google) under the company's "terms of service" links.

Update: July 11, 2008

Saul Hansell has a story in the June 16, 2008 New York Times ("Media & Advertising") "The Associated Press to Set Guidelines for Usings Its Articles in Blogs," link here.
AP's intentions still look a bit ambiguous. The AP says at one point that it would rather see a paraphrase and a link to the entire story so that the proper context is available, rather than even short quotes (which might call under many perceptions of "fair use"). It also says "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."

Second picture (to get your attention) from a fake Guantanomo cell on the Washington Mall June 2008.

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