Just when it appeared that the Associated Press had come to its senses, they’ve now announced an exorbitant up-front fee for even short quotations of their works, Tim Conneally reports for BetaNews. They’ve created a handy-dandy online form to calculate what we owe them.
Hmm. Well, surely, an organization as large as the AP, which goes around suing people, has lawyers on retainer, if not on staff. Surely, those lawyers have some training in copyright law and are familiar with Fair Use, as outlined in sections 107 through 118 of the Copyright Act (Title 17, U. S. Code). Presumably, then, there is a different fee structure involved for educational and non-profit use, right?
Right!
Hmm. Not much of a discount!
As a content creator, I’m very sympathetic to the AP’s desire to protect its economic interests. But to pretend that there is no right to quote some portion of their articles for the purpose of commentary or education is outrageous and undermines their objectives.
Michelle Malkin and Patrick Frey have a great deal of fun at AP’s expense, noting that work on their sites have been quoted, sometimes extensively, in AP stories. Tongue-in-cheek, Malkin even prepares a bill. They raise a legitimate point, though: Why is the AP’s quoting of someone else’s writing “reporting” whereas a blogger quoting the AP as a jumping off point for commentary “theft of intellectual property”?
Orin Kerr, who’s a lawyer — but decidedly not a copyright lawyer — writes that “fair use is always contextual and case-by-case” and that “copying the statements of a person who is ‘trying to get the word out’ is really different from a fair use perspective from copying the statements of a pundit or reporter.” But news outlets quote bloggers, including me, routinely without getting permission to do so. So far as I know, none of us mind that; most of us welcome it, in fact. But none have ever contacted me for permission to do so.
Kerr’s right that Fair Use is case-by-case and rather murky. But, although I’m not a lawyer, I’m rather sure that there’s no bright line rule that anything over four words is excluded.
Markos Moulitsas Zúniga, better known as “Kos,” is a specialist in media law who’s making enough money on his blog to justify going to court. He says: Bring it on.
Lots of blogs are calling for boycotts of AP content. Not me. I’m going to keep using it. I will copy and paste as many words as I feel necessary to make my points and that I feel are within bounds of copyright law (and remember, I’ve got a JD and specialized in media law, so I know the rules pretty well). And I will keep doing so if I get an AP takedown notice (which I will make a big public show of ignoring). And then, either the AP — an organization famous for taking its members work without credit — will either back down and shut the hell up, or we’ll have a judge resolve the easiest question of law in the history of copyright jurisprudence.
The AP doesn’t get to negotiate copyright law. But now, perhaps, they’ll threaten someone who can afford to fight back, instead of cowardly going after small bloggers.
I’m at a loss as to why the AP, whose relationship with bloggers is mostly synergistic, has been so ham handed in this instance.
