This article was originally published by WireTap.

Larisa Mann

June 28, 2008

Free Association is a new monthly column covering artistic rights, digital media and other open source issues by regular Wiretap contributor Larisa Mann.

If I were to fully comply with the Associated Press’ new license for quotations, I couldn’t write this article. Even if I paid them money for every quotation I used, this article is critical of the AP, which apparently they’ve decided is against their rules for quotation. Is this really the nonprofit news organization’s policy? Do you really have pay to quote AP articles and watch what you say about their content? How did bloggers and other writers, including myself, come to this conclusion?

The main clue is the AP’s published policy on the subject. One section of their license says that an individual cannot publish more than four words from AP-copyrighted material without paying; another section says that a user violates their license if they quote AP in a “derogatory” manner.

The policy reads:

“You shall not use the Content in any manner or context that will be in any way derogatory to the author, the publication from which the Content came, or any person connected with the creation of the Content or depicted in the Content. You agree not to use the Content in any manner or context that will be in any way derogatory to or damaging to the reputation of Publisher, its licensors, or any person connected with the creation of the Content or referenced in the Content.”

AP presents this license in its articles with the link “Reuse Options.” Nowhere does it say, for example, that the license is only for business uses. In fact, the license offers options for educational and nonprofit quotation uses at a reduced rate. But wait a minute… aren’t educational and nonprofit applications traditionally considered fair use under the US Copyright Act of 1976? Is the AP requiring a license for something that is legal anyway?

Blogger Backlash

The license also provides options to use content online for free if you post a link and allow advertising. But if I wanted to write a media criticism book, including advertising would be impossible. Does that mean I have to pay for all quotations? Will media critics be hindered if they have to pay for every AP quote they use? (There goes Noam Chomsky‘s career!)

At best, it’s unclear who the AP expects to the use license, or what their legal justifications are. They seem to be throwing a lot of “choices” out there, with an implied legal threat if you don’t pick the right ones. They seem to hope that bloggers will buy into the license — otherwise, why threaten them for posting excerpts without it?

The Associated Press, a not-for-profit organization owned by an allied group of newspapers, recently sent a legal threat to the popular social news website the Drudge Retort, whose members had re-posted AP-owned articles, excerpts and quotations with their own additional commentary and space for readers to comment as well. Following AP’s legal notice, DR’s owner took down the complete articles, but the AP also wanted the site to remove quoted materials. The site owner discussed his case with other bloggers, and the public’s criticism flared up.

Some bloggers suggest that since 1500 print newspapers own the AP, and the newspapers are losing money and attention to bloggers, this policy is an attempt to fight back. However, analysts point out that it’s unclear how posting excerpts (especially those with links back to the original articles) actually harms the AP. For example, bloggers at TechCrunch assert that posting and linking helps drive web traffic to AP sources.

TechCrunch’s response to the AP’s latest actions was to announce a ban on their use of all AP articles. Other blogs point out that local newspapers increasingly rely on sources other than the AP, which hurts its revenues even more directly. While bloggers may not be to blame, they may increase the AP’s willingness to crack down.

Furthermore, the AP now has a case of bad publicity and a sizable backlash from the very people it might want to turn to help solve its financial problems. In recognition, the AP has announced that it will release “guidelines for bloggers.” This is a good sign, but one with a poor track record. Writers have reason to be wary of allowing content owners to set the guidelines for fair use — their private interests may trump the public interest in open discussion and debate. Wiretap’s attempts to contact the AP by phone and email for clarification on the license’s requirements went unanswered.

Copyrights and Wrongs

In the meantime, the public interest law firm the Electronic Frontier Foundation published a legal guide for bloggers. Perhaps the AP should simply adopt this one. Another option would be for bloggers to emulate documentary filmmakers, who have created their own “best practices” document. Many bloggers create content and reuse it, so they’re better positioned to identify those best practices. But even then, copyright law allows more leeway than many people might think.

While it may be unfair for websites to reprint entire articles, if the article is mostly facts (like “tornado destroys 175 homes in Oklahoma, girl and her dog blown to a faraway land”) copyright law does not restrict their usage. The AP’s greatest concern appears to be the use of their headlines and first paragraph excerpts. But despite the hard work that can go into discovering facts for these posts, copyright law simply does not apply to facts.

Additionally, if an article quotation will be used as a fact itself for purposes of criticism (like my quotation of the license earlier in this column), it’s protected by the First Amendment and is not likely to be copyright-protected.

Imagine if you read an article in your local paper that asserted racist or sexist attitudes. If there were a fee in order to show others what the article said, freedom of expression would be impacted, as well as the ability to engage with media in an active and critical way.

During the Drudge Retort controversy, several things came to light. First, the AP’s policy and attitude is not entirely consistent. In a New York Times article, the AP’s vice president and strategy director Jim Kennedy appeared to backpedal, admitting that the Digital Millennium Copyright Act (DMCA) takedown notice was a “heavy handed” tactic. However, the AP continues to require excerpted articles to be taken down, and still maintains its license, including its anti free speech “no derogatory use” requirement.

But even setting aside the AP’s anti-criticism requirement, charging for quotations hinders participation in media criticism. Quotation and criticism is an established and important tradition predating blogs. And in a modern media landscape where a few corporations control all the major media outlets, it’s important to make sure alternative viewpoints get heard.

Handing Over Our Rights

Another potential problem is that if you agree to the AP’s license, you risk reducing the scope of rights available to you and everyone else in the future by creating a precedent of signing away rights. This is a tactic employed by the music industry and other businesses — using “voluntary” licensing agreements (with implied legal threats) that give you fake choices for rights you already have.

Sony attempted to apply this tactic to music CDs; it’s common for corporations everywhere to try to get people to sign away their rights. In certain cases, judges have concluded that one cannot sign away those rights. However, courts rely on established practices to know what the boundaries of our rights are, so if we get in the habit of giving them away, eventually we may lose them for good.

One thing is certain: Youth and grassroots activists have ably used the internet to critically engage media in front of a wide audience. The AP’s attempt to limit criticism through a licensing or automatic pricing system reduces equal access to media and audiences.

But worse, by inviting people to participate in this system, the AP license invites us to voluntarily give up our constitutionally defined right to engage in public debate. If we give that up at the outset, it’s harder for courts to grant them back to us when we realize what we’ve lost.

Further links

:

The Citizen Media Law Project

Young blogger Illegal Youth‘s response.

The EFF’s Legal Guide For Bloggers

Larisa Mann writes about technology, media and law for WireTap, studies Jurisprudence and Social Policy at U.C. Berkeley and djs under the name Ripley. She is a resident DJ at Surya Dub, San Francisco, and collaborates with the Riddim Method blog-DJ-academic crew, Havocsound sound system, and various other cross-fertilizing organisms in the Bay Area and worldwide.