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Where does copyright end and fair use begin? In the age of the blogosphere, this question is proving to be a difficult and painful one for copyright holders and bloggers to come to an agreement on.

The blogosphere was set aflame last week when the Associated Press (AP) sent Digital Millennium Copyright Act takedown notices to the Drudge Retort, a community-powered news aggregation website.

AP claims that although the Drudge Retort did not republish full AP stories, it quoted far too much.

According to AP intellectual property governance coordinator Irene Keselman:

"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 lead of a story without a proper license to be an infringement of its copyrights."

As David Kravets of Wired observes, "the issue falls into murky legal terrain."

He notes that the Electronic Frontier Foundation warns bloggers that "There are no hard and fast rules for fair use."

This, of course, has not stopped bloggers from throwing their fists up in rage.

Blogger and journalism professor Jeff Jarvis called the takedown notices "truly noxious" while TechCrunch's Michael Arrington pounded his chest and announced that AP stories "don't exist" as far as he's concerned.

While Arrington is correct in noting that the "Drudge Retort is doing nothing different than what Digg, TechMeme, Mixx and dozens of other sites do," it's also not difficult to sympathize with the AP.

The AP has more than 4,000 employees working at more than 240 bureaus in 97 countries.

The AP and news agencies like it are relied upon by thousands of media outlets around the world that serve news to hundreds of millions - if not billions - of people.

When a major event occurs, it's typically journalists employed by agencies like AP who are on the spot first engaging in actual "reporting."

Even if average citizens are increasingly providing media of an event using cell phones and digital cameras, we should not confuse the documentation of an event with journalistic coverage of it.

While it's easy for technology bloggers like Arrington to claim that the AP is simply trying to " protect a dying business model ," the truth of the matter is that he and other bloggers have absolutely no ability whatsoever to provide the sort of coverage that agencies like AP do on topics ranging from politics to sports.

Providing this coverage is not a cheap enterprise and the AP has every right to be concerned about the possible dilution of the value of its content.

While I question whether the AP chose the right target in the Drudge Retort, I think this situation highlights the perception that the value provided by the vast majority of blogs and news aggregation websites is quite questionable.

A significant number of blogs do nothing more than regurgitate the news that is reported by agencies like the AP and a significant number of news aggregation websites do little more than use the aggregation of news as a means to aggregate an audience that can be sold to advertisers.

In other words, bloggers and news aggregation website operators are often quite reliant on the content from news agencies like AP. Without this content, many would have little to no "source material" on which to build their " businesses ".

And we should not pretend that the majority of blogs and news aggregation websites engaged in the use of news agency content aren't "businesses."

The Drudge Retort, for instance, is a member of a "Liberal Blog Advertising Network." According to the ad network website, the Drudge Retort offers 5 ad spots that can be purchased for $650/month/each.

While the $3,250 The Drudge Retort theoretically pulls in each month from this advertising is not going to make anyone rich, it'd be hard to argue that the Drudge Retort isn't, to a certain extent, a commercial enterprise. Yet, of course, it leverages, to a certain extent, content that it doesn't pay for.

Which brings us back to where we began - where does copyright end and fair use begin?

Clearly, the republishing of a full AP story without license is copyright infringement. But how many sentences of a story fall under fair use?

Obviously, there are no easy answers here.

To its credit, the AP has realized that it may have been a little bit too heavy-handed. It now wants to engage in a "conversation" with bloggers in an attempt to come up with usage guidelines that everyone can live with.

Such a "conversation" would be quite worthwhile. Instead of resolving this dilemma through litigation, a resolution through dialog would be far more advantageous to all parties.

After all, the AP wants to protect the value of its content while bloggers should welcome the establishment of clear guidelines where none exist now.

The AP's willingness to talk has created a bit of irony as the New York Times' Saul Hansell points out:

"Mr. Jarvis, in particular, often talks about blogging as a conversation. It seems like the A.P. wants to talk, and many bloggers would prefer a temper tantrum to a discussion."

In other words, a conversation found the blogosphere and the blogosphere, thus far, appears to be refusing to engage in it.

Once again, I would argue that the blogosphere can't have it both ways.

If it wants to establish its role in the world of journalism, playing drama queen isn't going to help.

Drama 2.0

Published 19 June, 2008 by Drama 2.0

237 more posts from this author

Comments (4)

Avatar-blank-50x50

Amy graham

I don't think that I completely agree with you

You don't start a "conversation" by punching the guy you want to chat with in the
mouth.

If the AP really wanted to have a "conversation" they would not be filing lawsuits, sending legal DMCA demands and trying to dictate fair use. What it really looks like they are doing is trying to force through threat, legal weight and cost concessions to what is fair use..

If the AP really wanted a "conversation" they would have engaged bloggers and online news in a dialog they would have engaged this in a very different way.

Who would argue that AP's head of strategy isn't trying hard to spin this into a conversation now.

It's been shown elsewhere that AP considers "Fair use" of AP content to be exactly 4 words. Use 5 or more words and you'll be charged anything from $12.50 to $100 per use. What makes it worse and why the AP seems very "bad acting" here is that AP engages in many of the same behaviours that they claim are violating their copyrights. I've certainly seen the AP pull quotes and excerpts from blogs, websites and other news entities.

The AP is certainly entitled to protection of the "expression" of their work. But they are certainly not entitled to "special priveleges"

So maybe.. just maybe... it is that the AP can't have it both ways.

over 8 years ago

Drama 2.0

Drama 2.0, Chief Connoisseur at The Drama 2.0 Show

Amy: first, you seem to imply that the Drudge Retort should have been protected by the "fair use" defense. Please recognize that determining what constitutes "fair use" is often unclear and unless the parties want to use litigation as a means to obtain a determination, it will remain a grey area.

Let's be realistic. The AP is going to try to set guidelines based on what it thinks "fair use" is and bloggers are going to use AP content based on what they think "fair use" is.

It's also worth pointing out that AP believed the Drudge Retort had also violated the "hot news" doctrine, which is another issue altogether.

Adults admit when they've made a mistake. The AP admitted that it may have been a little heavy-handed and invited a conversation. If bloggers aren't grown up enough to accept that not every interaction is going to be sugar-coated and pleasant, perhaps they're in the wrong "business."

The bottom line is that there are good reasons for the tension between rights holders like the AP and bloggers. Bloggers should be pragmatic and welcome any opportunity to resolve these tensions outside of the court room because all it will take is one precedent-setting case against their interests to make them even angrier than a DMCA notice.

over 8 years ago

Avatar-blank-50x50

FreeBlogger

I think it's silly that you call most blogs "businesses" and imply that any of us are competing with the AP. Linking to a news story for puporses of discussion is not the same thing as running a news bureau. My own blog, and the vast majority of blogs, are free to run and earn no money whatsoever. Those that do are not in true competition with the AP, Reuters, or any other news organization.

Bloggers usually don't pretend to be reporters, nor do we want any worldwide reporters to lose their jobs. If any of them do, it is AP's own fault for being so quick to attack their audience. Bloggers select stories to write about because that is the joy of it - we are free to write about anything in the world. That is what we do - we express ourselves and we analyze things. Duh.

We don't need to link to the AP in order to do that, and now AP has ensured that many of us won't ever do it again. We don't need to be charged by the word or the punctuation mark. Quotes and Linking are Fair Use, and this is being blown so far out of proportion that it is unbelievable and absurd.

over 8 years ago

Avatar-blank-50x50

Drama 2.0

FreeBlogger: I think you miss a number of key points.

First, nowhere did I state that this issue has to do with perceived competition between the AP and bloggers. In fact, as I stated - bloggers have no ability whatsoever to match agencies like AP in coverage.

What's at issue here is how bloggers and news aggregators who are not AP licensees use AP content.

Second, what constitutes "fair use" is not always clear cut. Courts use four factors when evaluating whether a fair use defense is valid. There are no quick rules such as "I can quote 10 sentences." In one case, quoting two sentences may be too much while in another, quoting 15 would be perfectly fine. In other words, courts look at the totality of the situation, which obviously varies on a case by case basis.

You may be "free to write about anything in the world" but when you quote copyrighted content as part of your writing, legal issues *may* arise - whether or not you like it.

Third, I'd note that a significant number of blogs and news aggregators display some sort of advertising. Even if they don't make any real money from the advertising, calling them "non-commercial" is dishonest. Just because you're unsuccessful in your attempts to make money doesn't mean you're not engaging in an activity of a commercial nature.

Finally, apparently you're not familiar with the AP business model. The AP licenses its content to third-parties who want to use it. The AP is concerned that the way many bloggers and news aggregators are using its content goes beyond "fair use" and violates state "hot news" doctrines, in the process diluting the value of the content itself.

This puts AP licensees at a disadvantage (they're paying for a license while others are using AP content freely without one).

Unless you are an AP licensee, you are *not* the AP's "audience." Get it?

over 8 years ago

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