AP Wants to Redefine Fair Use?

The AP caused quite a stir over the weekend by demanding that a blogger remove even small quotes from AP articles, according to this Times story*:

Last apweek, The A.P. took an unusually strict position against quotation of its work, sending a letter to the Drudge Retort asking it to remove seven items that contained quotations from A.P. articles ranging from 39 to 79 words.

While it seems to have backed off from the stance that pretty much any use online shouldn’t be covered by fair use, AP has indicated that they want to define specific rules on pulling quotes from AP stories.

I suspect that this is an effort that is ill-thought out and doomed to failure (not to mention backlash) – to learn why, read below the fold…

First, some background on what fair use is. Publaw.com provides one of the most user-friendly explanations online:

The copyright law contemplates that fair use of a copyrighted work without permission shall be for purposes such as (1) criticism and comment, (2) parody and satire, (3) scholarship and research, (4) news reporting and (5) teaching, and that such fair use will not result in the infringement of a copyrighted work.

It’s this definition of fair techcrunch use that has made blogging about non-cat related topics possible, particularly the kind of blogging most non-profits engage in. On the Rock the Vote blog, picked randomly from my RSS reader, 12 out of 24 stories posted in May included excerpts from stories originating elsewhere, mostly news accounts. This ability to pull in a few key lines from a story makes blogging possible – it provides your readers context, and gives the rest of your post meaning. If, as the AP would prefer, you just linked off to their story, it would place the burden on your readers to find what you’re referencing in a given piece, then come back to read your post. That’s a burden that many readers would balk at.

What will make this pronouncement particularly galling is that major media outlets, particularly newspapers with both an online and dead tree edition, are among the worst at attributing credit to blogs or linking effectively. In this newspaper story, again a random selection from my RSS feed, the Times links “Democratic National Committee” to a search of their site for the term, rather than to democrats.org. Similarly, newspapers are notorious for not crediting scoops from even those blogs that do more original reporting, like TPMMuckraker.

Beyond the hypocrisy factor buzzmachine(and just to get in one more point here – anyone else find it ironic that a news service with a whole section linked on their homepage headlined “AP and the People’s Right to Know” would be opposed to the free flow of information?), though, there’s the sheer difficulty of AP trying to enforce any set of guidelines. The Times story alludes to this somewhat, when it discusses how unlikely these guidelines would be stand up to a court challenge, but beyond that, there’s a problem of volume. With Technorati tracking over 112.8 million blogs, and countless more untracked, it would be difficult for AP to just find all their excerpted content. Assuming they accomplish that feat, they would then have to send cease and desist letters to bloggers who may not publish an email address, much less a way to get in touch via snail mail. And those bloggers who ignore them would be difficult to track down in court, not to mention costly – bloggers’ rights to anonymity and pseudonymity are being protected in more states every year.

Hopefully, AP will back down on this front – a quick google shows many a blogger up in arms over this, with TechCrunch comparing them to the RIAA and declaring them “banned” and Jeff Jarvis stating, “I have my own guidelines. I stated them below. The point of fair use and fair comment is that there can be no set guidelines. That’s just ridiculous.”

I’ve written before about how information on the internet wants to be free – this is just another example. I don’t predict that the AP’s interest in their own set of fair use rules will last long, and don’t recommend altering how you blog if you’re already in accordance with existing law [see second update] (of course, if you’re just posting whole articles wholesale, you probably should mend your ways). And most of all, you should encourage others to excerpt and link to your own work – for most non-profits, the most important thing to spreading your message, so if your supporters want to do it for you for free, don’t stand in their way.

Update (6.17.08): Simon from Bloggasm has more, including backstory on other clashes between the Drudge Retort and the AP.

Update (6.19.08): The AP has elevated the fight to the next level by setting up a pricing chart (h/t: BetaNews via Personal Democracy Forum). In light of this, we’re going to stop quoting AP stories here at the Wire for the time being, not because we agree with this sort of thing, but because there are plenty of bloggers who will do a better job of picking this fight. I’ve updated the post to remove my recommendation that you continue to excerpt AP, since we’ve decided to stop doing so ourselves for the time being.

*Yes, I’m aware of the irony in excerpting an article about excerpting articles.

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