I have some disconcerting news to report on today's Legal Monday.
In a move that it will surely regret, the Associated Press (AP) declared war on the internet. Maybe that's a slight overstatement, but the AP will certainly rue the day it decided to adopt a policy of sending DMCA take-down notices to bloggers and social news aggregators.
Last week, the AP sent seven DMCA take-down notices to The Drudge Retort, a site parodying The Drudge Report and serving as a social news aggregator. The 8,500 site users create blog entries with links to interesting news articles on the web.
Rogers Cadenhead, owner of the Drudge Retort, received a letter from the AP's attorneys claiming that the Drudge Retort was infringing on the AP's copyright by allowing its users to publish short (39 to 79 words) quotations from AP articles with links back to the original. Five of the six alleged infringements used different titles than the original AP article. The seventh claimed infringement was in a blog comment that used a short quote of an original AP article and linked back to it.
Cadenhead provides the following example of an alleged infringement on his site detailing the claims:
According to the New York Times, the AP has retreated from its staunch position and admitted that it was "heavy handed" in its treatment of bloggers.
I'm relieved to hear that the AP is rethinking its policy, but I'm still a bit skeptical given the AP's recent litigious history. The AP talks about embracing the internet era, but its actions consistently demonstrate a desire to return pre-internet days where distribution control was vital for earnings.
So here's a little gratis news flash to the AP: Links are the currency of the internet. Instead of harassing bloggers etc., you should be praising them for bringing people to your content. It's a very poor business decision to ask people not to facilitate access to your product. The people posting and commenting on aggregator sites like Digg and Mixx are clicking through to your stories, thereby increasing your revenue. Many bloggers are indicating that they will stop linking to AP stories at all.
Also, from a legal perspective, an infringement case would be very weak. There is strong argument for a fair use defense here. The little quotations posted by bloggers are not stifling demand for the AP's product. Bloggers are creating demand, not decreasing demand by creating replacement supply. Further, posting excerpts of the articles and linking to the original facilitates and invites critical discussion of the content, one of the primary reasons for the fair use defense.
Whatever internal discussion is going on at the AP right now, I hope that people who understand the value of links and the economy and ethics of the internet will prevail.
Very truly yours,
Sarah Bird
In a move that it will surely regret, the Associated Press (AP) declared war on the internet. Maybe that's a slight overstatement, but the AP will certainly rue the day it decided to adopt a policy of sending DMCA take-down notices to bloggers and social news aggregators.
Last week, the AP sent seven DMCA take-down notices to The Drudge Retort, a site parodying The Drudge Report and serving as a social news aggregator. The 8,500 site users create blog entries with links to interesting news articles on the web.
Rogers Cadenhead, owner of the Drudge Retort, received a letter from the AP's attorneys claiming that the Drudge Retort was infringing on the AP's copyright by allowing its users to publish short (39 to 79 words) quotations from AP articles with links back to the original. Five of the six alleged infringements used different titles than the original AP article. The seventh claimed infringement was in a blog comment that used a short quote of an original AP article and linked back to it.
Cadenhead provides the following example of an alleged infringement on his site detailing the claims:
While this is the most surprising and poorly conceived of the AP's anti-internet campaigns, it is not the first. The AP sued Moreover, All Headlines News, and Google for copyright-related claims.Here's one of the six disputed blog entries:
Clinton Expects Race to End Next Week
Hillary Rodham Clinton says she expects her marathon Democratic race against Barack Obama to be resolved next week, as superdelegates decide who is the stronger candidate in the fall. "I think that after the final primaries, people are going to start making up their minds," she said. "I think that is the natural progression that one would expect."
If you follow the link, you'll see that the blog entry reproduces 18 words from the story and a 32-word quote by Hillary Clinton under a user-written headline. The blog entry drew 108 comments in the ensuing discussion.
According to the New York Times, the AP has retreated from its staunch position and admitted that it was "heavy handed" in its treatment of bloggers.
I'm relieved to hear that the AP is rethinking its policy, but I'm still a bit skeptical given the AP's recent litigious history. The AP talks about embracing the internet era, but its actions consistently demonstrate a desire to return pre-internet days where distribution control was vital for earnings.
So here's a little gratis news flash to the AP: Links are the currency of the internet. Instead of harassing bloggers etc., you should be praising them for bringing people to your content. It's a very poor business decision to ask people not to facilitate access to your product. The people posting and commenting on aggregator sites like Digg and Mixx are clicking through to your stories, thereby increasing your revenue. Many bloggers are indicating that they will stop linking to AP stories at all.
Also, from a legal perspective, an infringement case would be very weak. There is strong argument for a fair use defense here. The little quotations posted by bloggers are not stifling demand for the AP's product. Bloggers are creating demand, not decreasing demand by creating replacement supply. Further, posting excerpts of the articles and linking to the original facilitates and invites critical discussion of the content, one of the primary reasons for the fair use defense.
Whatever internal discussion is going on at the AP right now, I hope that people who understand the value of links and the economy and ethics of the internet will prevail.
Very truly yours,
Sarah Bird
Let's look at this:
1. unless AP is admitting they are making up quotes instead of reporting them, any snippets containing a quote from someone other than an AP reporter should not be allowed to even be brought up in a DMCA.
Indeed, if the AP were successful in this, the people quoted should be allowed to slap a DMCA on AP. Except that would violate freedom of the press. Apparently blogs don't count as press (to be honest, I think this is at the true heart of this issue).
2. Copyright only applies to creative works, not a recitation of facts. A phonebook can't be copyrighted, for example. AP would have to show that they are being "creative" while reporting the news, and that the snippets shown were sufficiently creative to justify copyright protection.
Somehow, I think I'd have a heard time convincing a judge that most news reporting is a creative work, rather than a dissertation of the facts. I suspect the AP would, too. I know I'd challenge in part based on that.
I think analysis, color, and multimedia should be covered under copyright, but a simple reporting of the facts in plain, simple grade 7 English? I'm pretty sceptical of that.
3. Doesn't the AP get a bunch of it's material from blogs? I know that a lot of blow-by-blow coverage of the earthquake in China was gleaned from blogs and YouTube posts. I think that's a pretty reprehensible contradiction, and enough to justify the pursuit of an equitable remedy. I like equity law.
4. Finally, it just sucks as a single-minded, unilateral, socially irresponsible decision in flagrant violation of the general understanding of how the Internet actually works. I'm embarrassed to say a lawyer probably came up with it. Probably one that needs someone else to send his email for him. And print out the responses so he can read it.
But maybe I'm just being mean. Someone sure is.
Ian
mcanerin, I've recently dealt with an issue of copyright on my site regarding copyright involving facts. My research does indeed backup your statement about copyright not applying to this.
What it does cover, though, is the organization and categorization of said facts. I guess this means the order of the information 'might' be be covered. However, it's still a very weak argument they are putting forward.
If they dont want those links, I will gladly take them off their hands.
OMG, Rishi a new avatar I see. Hilarious but considerably more offensive than the previous one.
Write a YOUmoz about the new avatar please.
Payne
I take no credit for that avatar - all I did was ask fro help from Sean, and as usual, he outdid himself!
Hold on. Little disclaimer here. Rishi - as a friend, I was simply responding to your request.
I didn't notice until afterward that I spelled Liquor incorrectly. ;)
So, I have a couple other options for you. Maybe a bit toned down and more appropriate. ;)
Lol - I must say I prefer the original... anyone who knows my old avatar will keep the association :P
I knew it that Sean had definitely something to do with the new pic!
why do i think that's an irish comment?
=)
Idiots! They are too stupid to understand a simple fact: journalist - news, blogger - opinion.
I remember AP stole private pictures of Ashley Alexandra Dupre (girl from NY govener scandal) from her MySpace profile and published them without her permission. Even after her lawyer asked them to remove all pictures they refused.
You're right, something about the "I'll sue you if you bring me business" mindset just doesn't quite jive with common sense. It’s bureaucracy at its best!
Talk about biting the hand that feeds you traffic. It seems a bit spiteful and childish to penalize websites that promote your content. One has to wonder if they were sending a message with the entities they penalized!
This is why a generational change in business overall is long needed, and is long coming. It’s time for heavyweights who have been around for 100+ years who are set in their ways to fall. VIVA LA REVOLUCION!
This appears to be another example of attorneys (and their executives) ensconsed in their castle keep ready to reign-down boiling oil onto anyone who gets too close, especially Christmas carolers.
Doom on those Christmas carolers, Doooooom!
I just read https://tinyurl.com/58j8rh , where Jim Kennedy, vice president and strategy director of The A.P., says, "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."
It is obvious that someone explained the value of links to Mr. Kennedy. That's good.
If I were advising Mr. Kennedy I would suggest that most content creators copy and paste because they want to be both industrious and efficient. Okay, there are lots of lazy bastards out there too, but I'll assume everyone means well.
If people have a proclivity to cut and paste then help them. Create an official excerpt with cut and paste copy and HTML code. By providing bloggers with an excerpt A.P. can:
Not everyone will copy and paste the official excerpt. Some will write original content *gasp!*. But, I believe a vast majority will take the path of least resistance, which could play right into the A.P.'s arms.
The point is though that when writing about something written about elsewhere, such as an AP article, it's often necessary to quote part of the article to make a point*. Having an 'authorised' quote simply wouldn't work. Set limits, maybe (although I still think that's not really going to work)
*Kind of like when MSM often quote interviews etc.. from other MSM. Hmmmm...
Having an authorized description or synopsis will not work in all cases, especially for independent minded and industrious folk who write true content, such as an opinion. Of course these are the exact same people for whom the fair use clause is designed.
But, for everyone who engages the little gray cells there will be many more who Ctrl-C/Ctrl-V. Having pre-written and publicly available text that includes a link and well-selected anchor text will produce tremendous benefits.
So companies send out press releases hoping to influence content, and now the press will send out blog releases.
Why not?
Why does it sound like Kennedy thought quoting and linking are mutually exclusive?
BTW, I think this line in the article, "attorneys claiming that the [Drudge Report] was infringing on the AP's copyright" meant to use [Drudge Retort].
Fixed it. Thanks!
You've got to love Michael Arrington. He's sueing AP for quoting him without permission.
That's awesome :)
holy smokes that's the best thing I've heard in a week!
There's also an interesting discussion to be had as to how 'original' much of the content AP claims ownership of really is. I think that Jeff Jarvis' response (which you linked to above) really sums up the ridiculous nature of the whole thing.
Also, whilst AP are now apparently saying that they may have been heavy handed, as far as I can tell they haven't retracted any of the take-down notices. I think this is one occasion where we can all agree with Michael Arrington.
Goodness. The dinosaurs are dying. Stuff like this makes you want to shake these people by the shoulders and shout, "DON'T YOU GET IT?!?!?"
The next thing you know, somebody will be trying to trademark 'SEO' or something...
Let's say that bloggers are angry enough that all of them not only stop linking/mentioning/referencing AP articles, but they delete old references from their site.
We're all so used to thinking of link juice as currency-in-waiting. How long before these actions would impact their bottom line?
Even more surprising is that they sued Google for linking to their articles from Google News... That seems even older than dinosaurs' era...
Perhaps AP should consider removing its stories from the internet entirely? Therefor saving itself any further business loss by removing the temptation that is blogging about news items.
I think that as time goes on we will come across fewer and fewer of these incidents as the true nature of the internet and its capabilities become known to more and more execs. AP truly do not know what they are missing out on if they decide to pursue this and stop people from quoting its stories.
I do find it a touch humerous that with this case they have picked on one of the smaller sites and not gone for the throat of Digg or something similar. Perhaps they are testing the water? Setting a basis for further legal action?
Its scary that corporations like this still exist. We need a 'supersize me' movie for the internet. :)
Maybe the AP understands link bait better than we realize. Now they've created so much controversy, we'll be linking to them more! (joke)
Hey, AP... Did you catch the importance here?
Shaking head in amazement...<edit> remove excess line break </edit>
Did AP do this without consulting their own legal and public relations people?
How do they even think that they are being harmed?
I'm sure it was the other way around. The A.P. attorneys did this without consulting their Internet marketing gurus.
"Five of the six alleged infringements used different titles than the original AP article. The seventh claimed infringement was in a blog comment that used a short quote of an original AP article and linked back to it. "
Were there only 6 claimed infringments?
My favorite part from this article:"So here's a little gratis news flash to the AP: Links are the currency of the internet."
Old dinosaurs are dying. Sending DMCA to bloggers that actually talk about your stuff and links to it is one more proof that a lot of people just don't get the internet thing..and we are in 2008 not in 96... sight
I don't agree with the comparison with the music industry.
In that instance, lots of people actually are stealing content - dress it up all you like, but using torrent etc.. is stealing (you can't walk into HMV/Tower and just take something off of the shelves, why should it be different online?)
The stupid thing here is that the bloggers aren't stealing - they are actively promoting, and driving traffic to, AP.
HMV/Tower? You do not live in the USA, do you? :)
No, the UK - I gave Tower as a reference so that those in the US would understand - have they gone bust there as well?!
I believe they turned the one up the street from SEOmoz into an Urban Outfitters so you'd still feel at home :)
Wow! PR: wait... I: wait... L: wait... LD: wait... I: wait...wait...
This is awesome. It really is. I love it. I love seeing the old dinosaurs like the AP and the RIAA stir ish up. They are truly digging their own graves bit by bit. The AP fails to understand the dynamics and power of the Internet. Like the RIAA they only "see" that this new medium is taking away from their old medium. But both the AP and RIAA should learn from the film industry. When home videos first started to appear, the industry was against it. But they wisely learned to adapt and realized that the home market was magnitude times larger than their theater distribution channel. The RIAA kept fighting MP3s - still does. Now, they have no possible way of ever defeating MP3s. Their best hope? Try to monetize MP3s. But their efforts suck and they have given up an awesome 2ndary market. The AP, likewise, risks further losing a 2ndary market. The AP also doesn't rule news. There's also Reuter. The syndicate that can adapt better to the new paradigm will rule. David Simon of The Wire spoke about the decline of newspapers. His viewpoint is that the newspapers gave into the Internet and made things "free" - removing its value. I personally think the AP has lost a lot of usefulness. Everyday I read an AP article with fundamental grammar and spelling mistakes. These are paid professional writers - not amateurs. Writers with paid editors who are supposed to go over this type of stuff. And yet there are grammar and spelling mistakes? To me, that's inexcusable. The quality of the product - the AP news - is poor so combined with the "free" Internet, there's no real monetary value for the AP. The AP should hire some more creative and young strategizers who can show them how to leverage this new paradigm.
I agree, I think it shows they dont understand but also just like the music industry they are freaking out that new media may start to erode traditional streams of revenue.
Panic stations
17 Century: Church vs. Galileo Galilei
21 Century: AP vs Bloggers
Where are we going?
Thats like Easton issuing a trademark violation when one of my clients uses their name in a page title, link, or body copy to sell their products online.
Try selling an Easton baseball bat without the word Easton in it. Stupid AP. Hopefully they will wake up.
This is a very, very typical example of "internet as evil".
AP allows print publications to go a lot further than this in re-using their content, and gets nothing in return as far as intellectual capital. They need to consider their next move very carefully. Especially if Reuters is at all on the ball and quickly comes out with a blogger-friendly policy.
Aren't these guys in the PR business? Sheesh...
Enjoyed the post Sarah. When will they learn? !! Wake up AP.
I think everyone here is looking at this through SEO/Blogger glasses, and not the "real" issue eye. AP I believe is claiming that to reprint/re-use AP articles requires a fee or membership with them, newspapers that print AP material are members. A blogger that has Google Adwords is technically making money on the site, which I think violates their terms for reprint. I could be totally wrong, but some of the comments sound a little immature to me.
Also the retort that AP quoted Bloggers, or they are quotes so not theirs (I guess the journalist that spent time getting the quote doesn't count, I bet if I took material from someone's blog there would be a quick fire) so what's the big deal? Well I was always taught 2 wrongs don't make a right.
I disagree, David - time spent on a project does not convey ownership. If I spend a huge amount of time and effort stealing your stuff, it doesn't make it any more mine than if I had simply hit "copy"
A recent case in the US regarding museums upheld this concept (to the surprise of the museums). If you've ever visited a museum, you'll have noticed that they tell people not to take pictures, but offer books of pictures of the exhibits for sale.
Someone copied all the pictures out of a book, and was selling them individually (without the organization, captions, etc). The museum sued. The Museum LOST. The reason? Because the pictures they took had no individual artistic merit - they were simply technical reproductions, and therefore the ownership still remained with the original owner. In this case, the public, since the antiquities in question had passed into public ownership.
The museum argued that the pictures were very good, had cost a lot of money to create, and had taken a lot of time and effort to get. The judge (rightly) held that did not convey ownership of the copy. The museum owned the books (and any unique descriptions), but not the images, which were intended to show a faithful reproduction, not an artistic treatment.
If I say (or sing) something, and you copy it, that doesn't give you ownership of it, no matter how much time and effort you spend copying it. You might be able to report it as a reporter, but it's MY quote, not yours.
It is a big deal to have your content passed off for profit (AP charges for it's content, and that includes quotes that they don't own). For them to then claim that those quotes are now theirs to the point where they can claim copyright over them is wrong. It's wrong to charge people for others work, and it's certainly wrong to claim ownership over it. You are right in that two wrongs don't make a right, but the point is, your position is the wrong one in this.
I would support AP's copyright over entire stories scraped for AdSense - clearly this is at least unjust enrichment - but to attempt to prevent others from doing the very same thing that they as journalists are required to do - cite a source using fair use rules - is very clearly wrong, IMO.
Ian
If it's an issue of fees or membership, then their content shouldn't be publicly available - it should be password protected for only their members to access it.
I have to totally agree with this post and think the AP is totally wrong for trying to shut down blogging. I cannot believe our world has come to a place where any innovative idea is somehow shot down because it affects another business. This is completely propitious and I cannot wait to hear more about this from this beautifully written blog.