Why Saul Hansell is wrong on AP

by Mathew on June 16, 2008 · 30 comments

In most cases, I’m all for a dose of rationality and common sense amid the short-attention-span Drama 2.0 that makes up much of the blogosphere. That’s exactly what New York Times blogger Saul Hansell is selling in his latest post at the Bits blog, in which he argues that the Associated Press copyright kerfuffle is just a silly misunderstanding. In effect, Hansell argues that Mike Arrington and Jeff Jarvis should quit whining and work with the AP to figure out how much of their newswire copy bloggers can reference without getting a “cease and desist” letter (if you need help with the background, see this post and also this post).

“What the A.P. is offering has the potential to be a great deal more constructive than Mr. Arrington and Mr. Jarvis suggest.”

Does it really though? I don’t want to be accused of succumbing to Godwin’s Law, but I would argue that a dialogue with the AP has about as much chance of being “constructive” as Chamberlain’s discussions with Hitler over the fate of eastern Europe. Just as that dialogue resulted in the loss of much of Czechoslovakia, I think a discussion with AP about how much bloggers can quote and under what circumstances is a mistake — and as Mike Masnick of Techdirt notes in a comment on Saul’s post, the AP hasn’t exactly shown itself to be open to a discussion. It seems to want to dictate terms. Saul says in his post:

“More important, the A.P. could well offer bloggers a safe harbor to use its content under certain circumstances without asserting a claim that every use beyond that line is copyright infringement.”

But that’s kind of the point: the AP doesn’t have to offer a “safe harbor” to bloggers or other media sites under certain circumstances. The fair use exemption under U.S. copyright law already does that, whether the newswire likes it or not (and clearly it doesn’t). If it wants to get someone to say whether a few sentences excerpted on a blog qualifies or not, then it can go to court and try to get a judge to do so. But sitting down and trying to negotiate some kind of blanket pass for something that is already permitted under law seems like a mug’s game.

As I’ve said before — both in my posts and in the back-and-forth I had with Cyndy Aleo-Carreira of Profy on her post — I have no issue with the AP sending C&D notices to sites that re-publish their content holus bolus, or fail to give attribution, or are in competition with the news service and therefore threaten their business model. But I don’t think The Drudge Retort falls into any of those categories, and I agree with Techmeme’s Gabe Rivera that AP’s attempt to extend its reach to that and other blogs or social media sites is a dangerous move.

Update:

Dan Lewis of Wikia and ArmchairGM has a guest post at Centernetworks in which he argues that AP’s case is better than some might allow, and David Ardia (director of Harvard’s Citizen Media project) has a counter-argument at MediaShift. Meanwhile, the Associated Press has a web form up where you can click to pay $12.50 for the right to quote five words from an AP story. Yes, that’s right — five words. I am not making this up.

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