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The Associated Press and Fair Use

17 June 2008

According to recent news reports, the Associated Press (AP) is going to try to define how and when bloggers and others can quote from AP stories. This follows in the wake of an AP takedown notice to a blogging site, the Drudge Retort.

The AP is certainly within their rights in wanting to protect their copyright. A New York Times blog entry explains the history of some subtleties that are often not mentioned in discussions of fair use. However, the AP seems to be going considerably what that history would permit.

Consider this statement (from the afore-cited NY Times article) by an AP executive: "... it is more appropriate for blogs to use short summaries of A.P. articles rather than direct quotations, even short ones." Direct quotation is almost certainly within the scope of fair use; a summary of the doctrine by the U.S. Copyright Office itself cites a government report as permitting "summary of an address or article, with brief quotations, in a news report". The same report notes that "quotation of excerpts in a review or criticism for purposes of illustration or comment" is permissible. Where is the violation?

It gets worse. The Making Light blog has a link to an apparent copyright license page that wants to charge you $12.50 for quoting 5-25 words on a web site, and with terms and conditions that prohibit using licensed quotations to say nasty things about the AP. That's certainly within their rights as a matter of contract law, but you almost certainly don't need a copyright license to quote them if you're criticizing them. Again, to quote the Copyright Office's web site, courts have regarded "quotation of excerpts in a review or criticism for purposes of illustration or comment" as within the scope of fair use. (I should note that I wrote "apparent" above because I haven't found a link to that page from an AP news story, except on that site. Also note that that web page existed before this controversy.)

If you're interested, the "fair use" provisions of U.S. copyright law are given in 17 USC 107. However, the exact scope is deliberately not defined by the statute; one has to rely on case law.

Presumably, the AP thinks that it's losing money because of these excerpts, and they'd make more money if bloggers simply published links. But you need some context to induce people to click on the link, such as an excerpt. Besides, links are generally transient. When I reference AP wire stories on this blog, I generally use the links via Google; here is the AP story on copyright issue. But a month from now, that story will be gone and the link will be broken. If the actual text is relevant to my point, what should I do? For that matter, if a reader wishes to check the original story for more details or to see if I misrepresented the story, how should that be done? (Should the AP sell a permalink generator? Perhaps I could buy a right to generate some number of permalinks per month to their stories. I'd certainly consider paying for that.)

The other possibility is that it's about control. Try this one: think back to your favorite quotation from someone who wishes he or she really hadn't said that. You want to publish some criticism of that — but the offending party informs you that the statement was part of a copyrighted performance that you don't have the right to reuse. Preposterous, right? But that's being tried! Prof. Wendy Seltzer used a clip of the NFL's copyright statement to teach her class about the limits of copyright. Naturally, she received a DMCA takedown notice. She replied that her posting fell within the fair use provisions of the law, so YouTube reinstated the video. This, of course, resulted in another takedown notice from the NFL. Cluelessness? Or an attempt to silence a critic?

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