Michael B. Duff

Duff: AP starts copyright fight but can’t handle blogger backlash

The Associated Press stirred up some trouble in the blogosphere this week by dropping the hammer on a site called the Drudge Retort.

The Retort started as a parody of the Drudge Report and has now turned into a news aggregation service. Visitors post excerpts from news stories and invite others to comment. A poster to the Drudge Retort posted 18 words from an AP story and a 32-word quote from Hillary Clinton.

The Associated Press considered that a DMCA violation and told the Drudge Retort to take it down.

Until now, bloggers have relied on the concept of fair use to protect them from legal threats like this. The U.S. Copyright Office defines fair use as “various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship and research.”

If you think these rules sound vague and difficult, you are not alone. The copyright office says as much on its Web site:

“The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”

Clear as mud, right? How much can a blogger quote from a news story without violating copyright? Ten percent? Twenty percent? Fifty percent?

The law doesn’t give hard and fast rules, but the 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law seems to support blogging in spirit, if not explicitly. According to this revision, fair use can cover:

1. Quotation of excerpts in a review or criticism for purposes of illustration or comment;

2. Quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations;

3. Use in a parody of some of the content of the work parodied;

4. Or, summary of an address or article, with brief quotations, in a news report.

Blogging may include all four of these activities, sometimes in the same post. But what is a blogger in this context? Are bloggers protected by the same rules that protect “legitimate” news services? Are they critics, scholars, reporters or comedians?

The Drudge Retort posts seem to be summaries used in a news report, but the Associated Press has a very different definition of “brief.” The AP’s intellectual property governance coordinator, Irene Keselman, laid out the case to journalist/blogger Rogers Cadenhead:

Keselman said, “AP considers that the Drudge Retort users’ use of AP content does not fall within the parameters of fair use. The use is not fair use simply because the work copied happened to be a news article and that the use is of the headline and the first few sentences only. This is a misunderstanding of the doctrine of fair use. AP considers taking the headline and lede of a story without a proper license to be an infringement of its copyrights and additionally constitutes hot news misappropriation.”

I thought up half a dozen cool things I could do with the phrase, “hot news misappropriation,” then I reluctantly gave up on my screenplay and looked up the real definition.

The concept of misappropriation goes all the way back to 1918, to the case of International News Service vs. Associated Press. The INS was barred from reporting war news from Great Britain. Instead, it started taking war news from Associated Press bulletins, rewriting them slightly in their own words, and reprinting them in their own papers, sometimes publishing the same news faster than the AP papers they were stealing from.

The 1918 ruling protects news organizations from other news organizations who might be tempted to lift facts from their reports. But how does this principle apply to bloggers?

I’m not a legal expert by any means, but I think AP is asserting special privileges and denying fair use because it’s worried about compensation for the act of news gathering itself. That means it doesn’t matter how many words you use, by copying any portion of an AP news item without permission, you are diminishing the value of its product and stealing from the members who did that reporting.

I think this is heavy-handed, and a large number of bloggers seem to agree. The AP letters triggered a firestorm of criticism, turning normally mild-mannered bloggers into red-eyed sputtering activists.

My favorite example comes from Jeff Jarvis, who said in a post, “I talked to a reporter this week about the embattled Associated Press and said three times that I didn’t want it to die. I might take that back.”

The criticism was so intense that The AP was forced to back down. The New York Times covered the backlash on Monday. Jim Kennedy, vice president and strategy director of The AP, is apparently in charge of damage control. On Saturday he said, “We don’t want to cast a pall over the blogosphere by being heavy-handed, so we have to figure out a better and more positive way to do this.”

The AP plans to meet with the Media Bloggers Association and work up some specific guidelines.

Jarvis sees this as an opportunity for The AP to adopt the ethical standards that are already established in the blogosphere. Mainstream bloggers have strict (if unwritten) rules for quoting and linking articles – rules that require them to identify and link to their sources.

Jarvis encourages bloggers to skip over AP stories about news events and go straight to the Web sites of local newspapers. In the age of digital publishing, bloggers don’t have to link to AP stories about breaking news in Jacksonville. They can go right to the source and link to Jacksonville.com.

The AP is limited to what gets put on its wire, but local papers can provide audio, video, slideshows and in-depth coverage, all delivered straight from primary sources.

The AP can seize the moral high ground here and develop sane, reasonable rules for quoting news stories, or it can stick to a hard line and alienate the bloggers who are keeping it relevant.

MICHAEL DUFF writes an Internet culture column for The Avalanche-Journal, but no one actually knows what that means.