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Still, [Jim Kennedy, vice president and strategy director of The A.P.] said that the organization has not withdrawn its request that Drudge Retort remove the seven items.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.
