AP Struggles To Save Face In Blogger Copyright Dispute

I don't blame The Associated Press for refusing to participate in a conversation about its attempts to overthrow government authority and rewrite copyright law to its own liking. The AP is like a husband who foolishly told his wife that the new jeans <i>do</i> make her butt look big. The best way to limit damage at that point is to simply shut up and hope the subject eventually goes away.

Mitch Wagner, California Bureau Chief, Light Reading

June 20, 2008

5 Min Read

I don't blame The Associated Press for refusing to participate in a conversation about its attempts to overthrow government authority and rewrite copyright law to its own liking. The AP is like a husband who foolishly told his wife that the new jeans do make her butt look big. The best way to limit damage at that point is to simply shut up and hope the subject eventually goes away.But this issue isn't going away. The AP is doing nothing less than attempting to unilaterally rewrite copyright law and also undermine citizens' freedom to criticize the news media. It's just plain wrong, it's un-American, and it needs to stop right now. The American people, through their elected and appointed representatives and judges, have a monopoly on writing laws. AP doesn't get to make its own rules.

At the center of the controversy is Drudge Retort, a somewhat Digg-like social news site (not to be confused with the Drudge Report). AP issued a Digital Millennium Copyright Act takedown notice to Drudge Retort last week. AP went far beyond normal copyright claims, stating that the Drudge Retort's quoting headlines and short excerpts -- less than 100 words each -- was sufficient to violate AP's copyright. Most people on the Internet would consider that behavior fair use -- indeed, it's been standard practice for blogs for years -- but AP says it was ripped off.

The dispute between Drudge Retort and AP was apparently settled last night. AP e-mailed a statement to me and other interested bloggers and journalists this morning: "[T]he AP was able to provide additional information to the operator of the site, Rogers Cadenhead, on Thursday. That information was aimed at enabling Mr. Cadenhead to bring the contributed content on his site into conformance with the policy he earlier set for his contributors. Both parties consider the matter closed."

But the bigger issues are far from settled. Cadenhead says on his personal blog, "[W]e're headed for a Napster-style battle on the issue of fair use."

The New York Times reports:

"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.

[Jim Kennedy, VP and strategy director of the AP,] argued, however, that The Associated Press believes that in some cases, the essence of an article can be encapsulated in very few words.

So what constitutes fair use? AP says, outrageously, that you have to pay to quote as few as five words.

That's simply preposterous -- and, moreover AP knows it. It violates its own guidelines in its own articles. It quoted a passage of 154 words from the blog Patterico's Pontifications and 22 words from the blog TechCrunch. And AP doesn't even provide links back to TechCrunch -- a violation of one of the very few fundamental rules that virtually all bloggers and Internet journalists agree on.

TechCrunch editor Michael Arrington is furious and he's going to file a DMCA takedown notice against AP. He writes: "Am I being ridiculous? Absolutely. But the point is to illustrate that the A.P. is taking an absurd and indefensible position, too. So I've called my lawyers (really) and have asked them to deliver a DMCA takedown demand to the A.P. And I will also be sending them a bill for $12.50 with that letter, which is exactly what the A.P. would have charged me if I published a 22 word quote from one of their articles."

But that's not the AP's only sin. The terms of service say you can't criticize AP. Which means that AP is trying to undercut literally centuries of political freedom in America and Europe, in which citizens claimed the freedom to report the news and criticize each other's reporting and opinions.

Democracy is not a marketplace of ideas, it's a brawl, and the AP is trying to claim that it should be granted the privilege of being exempt from criticism.

Malarkey.

My friend Patrick Nielsen Hayden nails it, tying the AP efforts to media companies' draconian attempts to rewrite copyright law to prohibit fair use of music, TV, and movies:

Welcome to a world in which you won't be able to effectively criticize the press, because you'll be required to pay to quote as few as five words from what they publish. ...

The people pushing for this stuff are not well-meaning, and they are not interested in making life better for artists, writers, or any other kind of individual creators. They are would-be aristocrats who fully intend to return us to a society of orders and classes, and they're using so-called "intellectual property" law as a tool with which to do it. Whether or not you have ever personally taped a TV show or written a blog post, if you think you're going to wind up on top in the sort of world these people are working to build, you are out of your mind.

Cadenhead is right that this is going to be a "Napster-style battle." We're still fighting the war that Napster started, and nobody is winning that fight, except the pirates, lawyers, and sellers of snake-oil DRM technology. The record companies are blaming pirates for all their troubles, rather than face up to the fact that they have an analog business model in a digital world. Law-abiding consumers are prevented from making legitimate use of their legally purchased media. And you can find whatever music, movies, and TV you want on BitTorrent sites like PirateBay.org, which ignore the law and laugh off attempts to prosecute.

As you might expect, this controversy has generated tons of reporting and commentary on blogs. I'm bookmarking the best of it on Del.icio.us.

About the Author(s)

Mitch Wagner

California Bureau Chief, Light Reading

Mitch Wagner is California bureau chief for Light Reading.

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