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.

  • http://sethf.com/ Seth Finkelstein

    What people don't understand is that sending lawyer letters IS a corporation's idea of how to start a “conversation” :-).

    [And if you don't believe that, remember, A-list blogger's idea of "conversation" is ranting from on-high to their audience below, and possibly bullying critics - it bears very little resemblance to any sort of reasoned exchange of concepts with equals.]

  • http://www.mathewingram.com/work mathewi

    Wait — you mean ranting from on high and bullying critics isn't a
    conversation? :-)

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  • http://chris.pirillo.com/ Chris Pirillo

    I truly wonder what NowPublic thinks of this turn of events…

  • http://www.mathewingram.com/work mathewi

    That's a good question, Chris. I should ask NowPublic CEO Leonard
    Brody what he thinks of the whole thing.

  • http://lifeisathrill.com mrshl

    I wonder how much it's worth to AP to keep you from quoting more than the allotted characters? Anyone can send a nasty letter. Are they really going to sue someone for reasonably linking to their material? Is that cash well spent?

    I agree. It will be interesting to see how the AP treats the news aggregators like Mixx and Digg. A flurry of takedowns? A lawsuit? All for the crime of sending them increased traffic?

    I hope they sue and someone's willing to litigate the issue. Somehow, I think the suit would probably be dropped before the AP allowed a ruling against them to become unwanted precedent.

  • jnolan

    Anyone suggesting that the AP can be bargained with misses the point that to undercut Fair Use by creating a side deal with AP sets a precedent that effectively undermines speech on the web. Furthermore, AP's idea that there is an organization that can determine such use restrictions on behalf of all blogs is simply an outrageous suggestion.

  • http://www.technovia.co.uk ianbetteridge

    “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.”

    Well… no, not really. The point of a dialogue isn't to listen to someone's point of view and accept it. The point of a dialogue is to listen to someone's point of view, and then tell them why they're wrong (or right, of course!)

    So the point of listening to the AP and talking to them is to tell them that, actually, not only have they been badly-advised as to the laws on fair use as there is a strong liklihood that they would lose any case they brought for the kind of use they're attacking, but that in framing their approach in the way they have been, they are courting a PR disaster.

  • http://www.technovia.co.uk ianbetteridge

    Dialogue is not bargaining. Bargaining would turning round to the AP and saying “ok, in return for this, you get that”. DIalogue is turning round to them and saying “We firmly believe under legal advice that our usage meets the criteria for fair use. Now, why don't we talk about ways that our fair use can benefit your business?”

  • jdaniels

    I hardly ever quote an AP story, but maybe it's time to pickup the pace. I'll keep track of the traffic I send them and send them a bill, one lawsuit later and maybe we'll have a new system for making money on the internet, where you pay for the traffic or you do't get any. Of course it'll be opt out. ;)

  • http://joeduck.wordpress.com JoeDuck

    dialogue with the AP has about as much chance of being “constructive” as Chamberlain’s discussions with Hitler over the fate of eastern Europe

    Matt thank GOD you resisted the excessive hyperbole that, according to Saul, challenges the credibility of the blogOsphere.

    Meanwhile I'm checking with AP about discounting Web 2.0 stories because you don't need nearly as many vowels as before. Flickr for example.

  • http://www.mathewingram.com/work mathewi

    Excellent point, Jeff.

  • http://ravinglunacy.org alan herrell – the head lemur

    Saul Hansell's pieces read more like resume writing than reporting.
    The novel theories put forth regarding the AP setting policy and legislating Fair Use is a non starter.
    In the first place, Fair Use is a Federal Law, which is not subject to change by pronouncement.
    Because of the 4 factors to determine the line between Infringement and Fair Use is always ends up in a courtroom, as there is no percentage, number of words or any other defined standard,other than the one we make ourselves.

    The more important issue and most interesting is the DMCA Notices on the allegedly infringing works do not come from the AP, but from sites that are syndicating the AP stories.

    Is the AP acting as a guardian ad litem for it's members, and as a result getting a second bite of the apple, by billing the members for court costs?

    Have any of the quoted stories been remodeled on the member sites, bringing up the question of transformative works, and therefore subject to a new copyright?

    There has been a lot of discussion of the various 4 factors that may be put forward as claims in court, the sexiest being :
    'the effect of the use upon the potential market for or value of the copyrighted work.'' since these folks are all about the benjamins.
    Here again I question the survivability of this as the AP has already sold this to the sites in question, making monetary damages unlikely.

    I have my own rambling thoughts on these.

    The Death Rattle of the Associated Press

    The Associated Press, Fair Use, Copyright, and the rest of us.

    An Open Letter to Jim Kennedy, Vice President; Director of Strategic Planning @ Associated Press

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  • http://www.mattroberts.com matt roberts

    Hey Mat,

    The G&M in Section 3 of their own terms of service don't allow me to copy and past any of their Content. “Except as provided herein, you agree not to reproduce, make derivative works of, retransmit, distribute, sell, publish, communicate, broadcast or otherwise make available any of the Content obtained through a CTVGMPI Site or any of the Services, including without limitation, by caching, framing or similar means, without the prior written consent of the respective copyright owner of such Content.”

    http://www.theglobeandmail.com/help/termsandcon

    Granted they haven't sued anyone. But It would be nice to know they won't.

  • http://www.mathewingram.com/work mathewi

    Yes, I'm aware of that, Matt (it was the first thing I checked when
    the AP thing came up). For what it's worth, I don't think we've ever
    gone after anyone for simply quoting a few sentences — although
    obviously I can't promise that it would never happen, because that's
    not my department. But I'm pretty sure it's just there to prevent
    wholesale copying or scraping.

  • http://www.mattroberts.com matt roberts

    I agree that's what its probably there for.

    Maybe someone should get Geist to write up a Fair Use of On line Media (read corporates) maintaining appropriate linkbacks, on line use only, etc. and then ask at least our Canadian Guys to sign on. Might save us any worry, or and AP like issues in Future.

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  • http://www.drama20show.com/ Drama 2.0

    Matthew: I would suggest that you change the “Drama 2.0″ in your article to “drama 2.0.” The appearance of my name next to the disparaging phrase “short-attention-span” threatens to dilute the value of my personal brand.

    I should also point out that “Drama 2.0″ is a registered trademark in the Republic of Liberia, Transnistria, Panama, the Democratic Republic of the Congo and Burma and your unauthorized use of this mark may be in violation of my rights.

    If you are interested in seeking a commercial agreement to license the Drama 2.0 mark, please contact me and I will put you in touch with my legal representatives in North America.

  • http://www.mathewingram.com/work mathewi

    Thanks, Drama. I will take that under advisement, and my solicitors
    will be in touch in order to take the appropriate steps.

  • http://www.drama20show.com/ Drama 2.0

    Matthew: I would suggest that you change the “Drama 2.0″ in your article to “drama 2.0.” The appearance of my name next to the disparaging phrase “short-attention-span” threatens to dilute the value of my personal brand.

    I should also point out that “Drama 2.0″ is a registered trademark in the Republic of Liberia, Transnistria, Panama, the Democratic Republic of the Congo and Burma and your unauthorized use of this mark may be in violation of my rights.

    If you are interested in seeking a commercial agreement to license the Drama 2.0 mark, please contact me and I will put you in touch with my legal representatives in North America.

  • http://www.mathewingram.com/work mathewi

    Thanks, Drama. I will take that under advisement, and my solicitors
    will be in touch in order to take the appropriate steps.

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