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AP Blog Fair Use Guidelines

The Associated Press is backing down on its attempt to use the Digital Millenium Copyright Act to stop the Drudge Retort from using short excerpts of its content after a major backlash in the blogosphere. (See Jeff Jarvis, Cernig, Michael Arrington, and others for background.)

Saul Hansell reports the AP’s modified stance in today’s NYT:

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.

[...]

Mr. Kennedy said the company was going to meet with representatives of the Media Bloggers Association, a trade group, and others. He said he hopes that these discussions can all occur this week so that guidelines can be released soon.

Still, [Jim Kennedy, vice president and strategy director of The A.P.] said that the organization has not withdrawn its request that Drudge Retort remove the seven items. And he said that he still believes that it is more appropriate for blogs to use short summaries of A.P. articles rather than direct quotations, even short ones. “Cutting and pasting a lot of content into a blog is not what we want to see,” he said. “It is more consistent with the spirit of the Internet to link to content so people can read the whole thing in context.”

Even if The A.P. sets standards, bloggers could choose to use more content than its standards permit, and then The A.P. would have to decide whether to take legal action against them. One important legal test of whether an excerpt exceeds fair use is if it causes financial harm to the copyright owner.

“The principal question is whether the excerpt is a substitute for the story, or some established adaptation of the story,” said Timothy Wu, a professor at the Columbia Law School. Mr. Wu said that the case is not clear-cut, but he believes that The A.P. is likely to lose a court case to assert a claim on that issue. “It’s hard to see how the Drudge Retort ‘first few lines’ is a substitute for the story,” Mr. Wu said.

Mr. Kennedy argued, however, that The Associated Press believes that in some cases, the essence of an article can be encapsulated in very few words. “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,” he said.

While most of my blogging brethren are outraged at this and there is an organized effort to boycott AP content on blogs, I’m actually surprised that this action is so late in coming. I’ve worried for years that the lengthy excerpts I use on OTB could be ruled to exceed “fair use” but relied on the notion that I was adding enough commentary to create a transformative work. Practically speaking, however, few bloggers have the deep pockets to fight a massive organization like the AP in court.

I happened to discuss this a bit with Media Bloggers Association (MBA) president Bob Cox over the weekend during a phone call on an unrelated matter. As he points out, bloggers like myself are frustrated over the scourge of scraper blogs which republish our content automatically in order to generate revenue. Those sites often wind up higher ranked in the search engines than the original content and thus cheat us out of ad impressions and thus income.

Quite often, blog posts — including those at OTB — that build from content created by the AP, NYT, WaPo, and others will wind up ranked higher in Google than the original content. This is due to the inter-linking that blogs do, the nature of permalinks, and a variety of factors that I don’t truly understand. It’s not hard to see why the AP would be irritated by that fact. If someone looking for information on the latest breaking news winds up at a blog that’s excerpting AP content rather than on a site displaying advertising that the AP is getting paid for, we’re costing them money.

At the same time, recirculating and commenting upon their content — so long as we link to the original — undoubtedly drives content to the AP’s affiliated sites and creates an additional audience for their work. What the trade-off is, exactly, I don’t know.

I, for one, would like to see some consensus build up on what constitutes “fair use” in the Internet age. My preference would be that they be established by organizations like the MBA (of which I’m a board member) working in cooperation with major media outlets such as the AP rather than via the courts, regulatory agencies, or Congress. Jeff Jarvis is right that it’s almost impossible to create a one-size-fits-all definition based on number of words or percentage of the total work excerpted. But, surely, the original creators of content are entitled to some rights to ensure they are paid for it. That’s not only fair but in the long term interests of bloggers and blog readers.

UPDATE: I appeared in the first half hour of Tara Servatius Show (Charlotte, NC’s WBT) with substitute host Pete Kaliner discussing this matter. You can listen to the interview here.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. Bithead says:

    At the same time, recirculating and commenting upon their content — so long as we link to the original — undoubtedly drives content to the AP’s affiliated sites and creates an additional audience for their work. What the trade-off is, exactly, I don’t know.

    Well, I for one can’t imagine that it’s anything but a positive for AP.

    AP’s stepped in it, here with the schoolyard bully tactics that they called ‘policy’. Damn it, they have no problems quoting entire posts from BitsBlog, nor does Reuters. Why now? Wasn’t this settled with ‘fair use’?

    I have yet to determine our response at BitsBlog. That response is dependant on them, at this point. My instinct is to ban such quotes going forward from AP, in much the same way I ignored the New York Times as a source for a few years. If they chose, they will become a non-entity.

    Oh, I know… one blog doing that means little. But I can’t imagine that if Ap gets cranky, that I’d be alone. Imagine a world where bloggers get pissed at AP and stop linking them. Think that wouldn’t be a negative from AP’s perspective? I can’t imagine the number of hist we’ve given them over the years, and that can’t be a negative for them, though everyone dumping them would be.

    I’m a reasonable guy, however, and we’ll see how this plays out.

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  2. Boyd says:

    I have never gone to the AP as an initial source of online information. Any time I’ve gone there, it’s because I’ve followed a link from a blog.

    Are they complete idiots over there?

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  3. [...] question becomes, what constitutes “excessive”? I have had similar thoughts to those of James Joyner: I’ve worried for years that the lengthy excerpts I use on OTB could be ruled to exceed “fair [...]

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  4. Dave Schuler says:

    It seems to me that (surprise!) the blogosphere is overreacting somewhat. Aggregators seem like fair game to me.

    However, I think the A. P. is leveling its guns at the the wrong target. It seems to me the real target is Google, which enables thousands of automated aggregators which I have no doubt are violating not only the A. P.’s intellectual property rights but those of hundreds of thousands of bloggers as well.

    Rather than alienating bloggers (the “ink by the barrel” dictum applies to us, too) the A. P. should be currying favor with bloggers by going after the predators that prey on us. That way they’d be defending intellectual property rights and enlisting an army of supporters at the same time.

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  5. Cernig says:

    James,

    I hope that you and the rest of the board of the MBA will be telling AP that any attempt to push their guidelines beyond what is already set down in law, and thus establish a creeping precedent they can use against bloggers later, will be unacceptable.

    Ann Althouse addresses the point well.

    Regards, C

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  6. Michael says:

    bloggers like myself are frustrated over the scourge of scraper blogs which republish our content automatically in order to generate revenue.

    Do they scrape your comments too? Because, to be honest, that’s why I’m here. Also, Can you include advertisements in the body of your articles, so that scrapers would re-post the advertisements that earn money for you?

    Damn it, they have no problems quoting entire posts from BitsBlog, nor does Reuters.

    Wait, AP and Reuters republished exerts from your blog? Call me skeptical.

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  7. mq says:

    Once again, Old Media fails to get the whole Web 2.0 thing. Links are good. And BTW, I’ve never seen a major blog use content from any news outlet without linking to the story in question. That’s just proper form, just like providing footnotes or a list of references in a printed work.

    PS – Maybe someone with newspaper experience can help me out here, do newspapers who take whole AP articles for use in their print and online distribution pay AP for the use of their content? If they do, how much?

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  8. Bithead says:

    Aggregators seem like fair game to me.

    Possibly, Dave… and given the recent experiences of James and myself and who knows who else with the scrapers, I’d be inclined to agree. Problem then becomes, how to legally seperate the two behaviiors?

    Can you include advertisements in the body of your articles, so that scrapers would re-post the advertisements that earn money for you?

    James will correct me if I err, but I’ve looked at this myself, and I don’t think thats possible without a complete re-writing of the way WP handles RSS. I do know that there are some plugins for WP that will inject ads into RSS feeds, but how easy such would be to remove from the feed, seems at issue. There are others too… for example:

    Wait, AP and Reuters republished exerts from your blog?

    Oh, sure. Mine and several others. The service is called BlogBurst. As an example, look here.

    But therein, lies another problem with injecting ads into the content; those ads end up in places they shouldn’t be, too.

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  9. Dave Schuler says:

    do newspapers who take whole AP articles for use in their print and online distribution pay AP for the use of their content?

    The Associated Press is a cooperative, owned by its members which contribute stories, photos, etc. to the coop. There are something like 1,700 members of the cooperative and additionally there are a large number of overseas subscribers who pay a regular subscription to use materials. I have no idea what the subscription rates are any more.

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  10. Dave Schuler says:

    BTW I’ve always thought that the wholesale distribution model was a lousy way to organize news coverage.

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  11. Bithead says:

    I should have pointed out, that such publishing of blogs vua the Blogburst service is by no means limited to the two news services I mentioned. Bitsblog makes the Chicago Sun-Times on a reguar basis, for example, as well as WaPo’s web pages, the NY Times occasionally and so on. It’s been a nice little traffic booster, and kind of a kick for DavidL and myself, too.

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  12. [...] James Joyner see the scourge of scraper blogs as a very real problem and is ready to work together to find a way to an answer: I happened to discuss this a bit with Media Bloggers Association (MBA) president Bob Cox over the [...]

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  13. Michael says:

    Oh, sure. Mine and several others. The service is called BlogBurst. As an example, look here.

    Hmm, interesting. The BlogBurst website looks like it’s an opt-in service, but given your unhappiness with it, I’ll assume that they went ahead and signed you up regardless, probably scanning blog-hosts and cross-blog linking. Have you tried sending them a DMCA take-down notice?

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  14. Bithead says:

    The BlogBurst website looks like it’s an opt-in service, but given your unhappiness with it,

    Oh, no… I’m not unhappy with the service at all. But the point here is it does seem to me a bit of a double standard beng applied, here.

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  15. Michael says:

    Oh, no… I’m not unhappy with the service at all. But the point here is it does seem to me a bit of a double standard beng applied, here.

    How is it a double-standard? If you opted-in, you agreed to let them reproduce the content of your posts. Unless they gave you a similar agreement in regards to their posts, you don’t have a right to duplicate them.

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  16. Bithead says:

    (Sigh) There you go again.

    Look, Mike, even absent such an agreement, with Blogburst or any other such service, they’ve always had the right to quote passages from my site, or anyone else’s for that matter. It’s called “Fair Use”. Where the Blogburst agreement vaires is that such places then have the right through the service to taken entire posts, and redistribute them as a part of the service.

    Their presumed complaint is that such quoting of passages on my part, even under the established fair use policy, is a problem.

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  17. Michael says:

    Their presumed complaint is that such quoting of passages on my part, even under the established fair use policy, is a problem.

    See, I thought that their complaint was either that you were quoting more than fair-use allows, or not adding any other value that fair-use requires.

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  18. Michael says:

    Just as a clarification, BlogBurst does not rely on Fair-Use to re-post your blog content, you explicitly give BlogBurst a license to reproduce and sub-license your content in it’s entirety.

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  19. Boyd says:

    See, I thought that their complaint was either that you were quoting more than fair-use allows, or not adding any other value that fair-use requires.

    As the quoted NYT story James quoted above said, “[Jim Kennedy, vice president and strategy director of The A.P.] said that he still believes that it is more appropriate for blogs to use short summaries of A.P. articles rather than direct quotations, even short ones.”

    Apparently, AP thinks that any quoting of AP stories goes beyond fair use. Vice versa, not so much.

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  20. Bithead says:

    See, I thought that their complaint was either that you were quoting more than fair-use allows, or not adding any other value that fair-use requires.

    Boyd got this one.

    Just as a clarification, BlogBurst does not rely on Fair-Use to re-post your blog content, you explicitly give BlogBurst a license to reproduce and sub-license your content in it’s entirety.

    Correct. Then again, that’s not the point. What IS the point is they see such agreements as being to the advantage of both parties. Yet, for some reason, they don’t see the reverse as being true… despite long standing law and policy to that effect.

    The double standard to which I refer is not a legal one but a moral one, you see.

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  21. The ‘Fair Use’ Flap: Associated Press to Set Guidelines for Bloggers?…

    During last week’s kerfuffle over use of AP content, bloggers who felt bullied by its move against the left-leaning Drudge Retort (not to be confused with The Drudge Report) urged an AP boycott. Apparently AP executives are worried that bloggers are m…

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  22. [...] that there are lines that a responsible commentator shouldn’t cross. But where are they? At Outside the Beltway, James Joyner expresses the same unease I’ve occasionally felt when quoting extensively from [...]

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  23. Boyd says:

    [snark]
    Of course I got this one. I read James’ original post!
    [/snark]

    Sorry, I couldn’t resist. But really, this was already covered in the quoted article, so I was really surprised that this point was misunderstood.

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  24. Michael says:

    [snark]
    Of course I got this one. I read James’ original post!
    [/snark]

    Sorry, I couldn’t resist. But really, this was already covered in the quoted article, so I was really surprised that this point was misunderstood.

    Sorry, I kind of glossed over the article and started right in with Bit’s comments. I’m just not paying enough attention today, my fault.

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  25. [...] Joyner is among those who is not only not outraged, but somewhat surprised that it took this long: While most of my blogging brethren are outraged at this and there is an organized effort to boycott [...]

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  26. I, for one, would like to see some consensus build up on what constitutes “fair use” in the Internet age. My preference would be that they be established by organizations like the MBA (of which I’m a board member) working in cooperation with major media outlets such as the AP rather than via the courts, regulatory agencies, or Congress.

    But it really doesn’t work that way, does it? Any “agreement” by major media players doesn’t have the force of law, and could actually be overruled or expanded by a legal ruling. I agree with the general point that “Fair Use” needs to be better established, but the way to do so is through legislation or legal ruling, else there is no real legal effect in the long run.

    And yes, the AP is being incredibly stupid in this action.

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  27. Bithead says:

    Sorry, I kind of glossed over the article and started right in with Bit’s comments. I’m just not paying enough attention today, my fault.

    If I was worried….. (Shrug)….

    But it really doesn’t work that way, does it? Any “agreement” by major media players doesn’t have the force of law, and could actually be overruled or expanded by a legal ruling.

    Hmmmm. I don’t suppose that anyone has noted that all this takes on that appearance, already? If you as a company were unhappy with the way the thing fell out, in terms of ‘fair use’ and wanted to shift the sand in this little bowl, how would you go about it?

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  28. [...] At Outside the Beltway see James Joyner: [...]

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  29. [...] further discussion on this developing issue at:  The Moderate Voice, Personal Democracy Forum, Outside The Beltway, Sweetness & Light, Althouse, The Carpetbagger Report, PoliBlog (TM), The Seminal, Concurring [...]

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  30. Bithead says:

    Just had the chance to listen to your interview, James and one point you made struck me, that being that most of the traffic from AP goes away rather quickly. Then again, most of the AP stuff doesn’t really show on AP sites, per se’, but tends to be on TV and radio station sites as well as some newspapers. Such sites are generally smaller in size and so such postings are time limited.

    That whole line of thought got me to wondering if this whole comlaint by AP wasn’t a result of some of their client sites/stations complaining about the costs involved with an instalanche?

    Glenn aside, We’ve seen stuff Boortz has linked melt the servers in question, as well as what makes it out to places like Memeorandum.

    Might this explain why they wanted a summary and no link at all?

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  31. Counsel says:

    I hate to side against the AP, and I guess I will now go to Reuters for my sources…

    The U.S.A. government has a nice “fair use” description (See http://www.copyright.gov).

    On that page, the US Government states, “Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work” and describes the 4-prong test in Section 107.

    Namely, in determining “fair use,” the courts will look at:

    1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
    2. the nature of the copyrighted work;
    3. 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.

    The problem with the AP’s move here is as follows:

    The AP will be driving bloggers to the source of the quote rather than to the news agency or agencies for the story. The bloggers will be avoiding news agency comment and coverage and will, in effect, be covering the story on their own.

    Just as the AP can cover news events (public speeches by presidential candidates, etc.), so can anyone else. Do you have to be present to use such information? If the material is not copyrighted, no “fair use” is needed to fully quote the document.

    Remember, plagiarism is “the unauthorized use or close imitation of the language and thoughts of another author and the representation of them as one’s own original work” (See Wikipedia). Note the correct use of a cite.

    I simply don’t see the long-range planning by the AP in their current posturing. Regarding a statement by a person, I do not think the AP has any legs to stand on… Does the AP own the Copyright to all statements made by Fox News or other individuals? Even if they do, “fair use” still applies.

    Of course, it has to be “fair use.” Just as you don’t want the AP to take all of your stories and “steal” your readers, the AP wants to protect their “bottom line” as well. Copyright is good, as is “fair use.”

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  32. Michael says:

    That whole line of thought got me to wondering if this whole comlaint by AP wasn’t a result of some of their client sites/stations complaining about the costs involved with an instalanche?

    Using legal procedures when a perfectly usable, cheap and easy technical solution to the problem exists would be about the absolute stupidest thing to do. So yeah, you’re probably right.

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  33. Bithead says:

    Using legal procedures when a perfectly usable, cheap and easy technical solution to the problem exists would be about the absolute stupidest thing to do.

    [snark]
    You mean like using law for raising cafe standards, and banning domestic oil drilling and refining, rather than the techncical answer of opening up our oil fields for drilling?
    [/snark]

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  34. Michael says:

    You mean like using law for raising cafe standards, and banning domestic oil drilling and refining, rather than the techncical answer of opening up our oil fields for drilling?

    Only in your example, you’re suggesting that instead of implementing a legal measure to reach outcome A, we should use a technological measure to reach outcome B.

    If there were a technological means accomplish exactly what CAFE and drilling bans have accomplished, then by all means lets use them instead of having to enforce laws. But if such a tech exists, I don’t know about it.

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  35. [...] this issue is really heating up. It’s not just me. See: AP Blog Fair Use Guidelines. While most of my blogging brethren are outraged at this and there is an organized effort to [...]

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