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Wednesday, June 18, 2008

Bloggers Fight Back Over The Associated Press 'Fair Use' Policy

Recently the Associated Press (AP) went after a blog called the Drudge Retort, forcing them to remove articles which included short quotes from AP reports. Some bloggers decided to boycott the AP, other bloggers are fighting back differently.

In a battle of wills between Internet bloggers and a major media outlet, the Associated Press filed six Digital Millenium Copyright Act takedown requests against the Drudge Retort claiming that the users linking to its stories are violating its copyright and committing "'hot news' misappropriation under New York state law.

Immediately bloggers from all over the web started boycotting the AP, with some top names, such as TechCrunch, deciding that until the AP backed down from their "ridiculous attempts to stop the spread of information around the Internet", they just did not exist anymore.

The owner/founder of TechCrunch's point is that there are already laws on the books determining fair use and the AP doesn't get to decide how content is used if their rules are stricter than the law itself.

Bloggers Fight Back.

The Associated press now has a "user agreement', which shows that for as little as 5 words used from an AP article, they want to charge $12.50, and it scales up for the more words being used.


This set off a firestorm of criticism as well as larger, more prominent bloggers, to actively fight back against the AP, each using their own methods and style.

For example, Markos Moulitsas, founder of one of the largest liberal websites online called the Daily Kos, is going head to head with them hoping they will take this to court. Kos as he is known, quoted 120 words from an AP article and then states, "Hey AP -- that's 120 words. Have your lawyers call my lawyers."

Lots of blogs are calling for boycotts of AP content. Not me. I'm going to keep using it. I will copy and paste as many words as I feel necessary to make my points and that I feel are within bounds of copyright law (and remember, I've got a JD and specialized in media law, so I know the rules pretty well). And I will keep doing so if I get an AP takedown notice (which I will make a big public show of ignoring). And then, either the AP -- an organization famous for taking its members work without credit -- will either back down and shut the hell up, or we'll have a judge resolve the easiest question of law in the history of copyright jurisprudence.

The gauntlet is thrown down by Kos.

Kos mentioned something in the above quote which is the basis of the next example.

The bloggers that use AP excerpts, especially the examples shown by the original Drudge Retort pieces, that the AP forced them to remove, always linked to the originating AP article, which is something that the AP itself does not do.

Enter Michelle Malkin, a popular conservative website, has been quoted extensively by the AP, who never bothered to link to her original pieces, nor paid her a dime for the usage.

Malkin shows the exact examples of when the AP used her content, then calculated, using the AP's own user agreement scale for web excerpt usage, how much money the AP owes her for using direct quotes from her site without credit nor payment and determined the AP owes her $132,125.

Malkin also tallies up what the AP would owe other bloggers that they have quoted without credit or payment and says, "If your blog content/comment threads have been quoted by the AP, let me know what your bill would be."

The examples go on and on, but only one more is needed to show what is representative of what is going on around the blogosphere about this issue.

Patterico's Pontifications has been quoted extensively by the AP as of late.... with no payment and in another post he gives people one more option for fighting back against the AP, to use their quotes, within the bounds of the law's fair use policy, and just do not link to them at all, he says.

Don’t refuse to quote them.

Just don’t link them.

There’s no law that says you have to link what you quote. Just use a quote that fits within fair use, do your commentary, and deny them the link.

The Copyright Law of the United States of America can be found here and the pertinent area of concern is, 107. Limitations on exclusive rights: Fair use, where it states:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Whether they are boycotting the Associated Press, or billing them for their own use of other's work, using the AP's billing scale, or getting directly in their face as Kos is doing, bloggers are fighting back with a vengeance against the self admitted heavy handed tactics of the AP against a blogger that runs a one man operation instead of going after much more prominent bloggers, thereby earning themselves the title across the web of "bully".

The fight is on and legally, according to the laws already on the books, it may be a fight the AP cannot win.