A Quiet Take on the AP
Some people are still "waiting" on the AP to deliver a definitive guide to what can or cannot be copied of the AP material without risk of a DMCA notice. We really don't need to wait, nor do we need anything from the AP. We have copyright laws in this country, and they include the concept of "fair use", which we can continue to use as guide for our own writing.
People do need to look at how they quote and use other's work. If you feel that your use is justified and covered under Fair Use provisions, than full speed ahead and damn the consequences. You may be served a DMCA; you may not. Receiving one is not a judgment, and you won't be pulled into jail. In fact, you don't even have to respond by pulling the material if you really feel you're on the side of the law.
I wouldn't necessarily expect that you would get legal help, though. This environment tends to favor the noisy and the known. If you're neither, chances are you'll be on your own if you get a DMCA. That doesn't mean you shouldn't feel free to quote others, or to use AP material. It just means that you have to accept the consequences of your actions when you publish online, and use other's material.
As for the AP's DMCA notices being supposedly based on title and lede/lead, alone, whereby the lede is the first few sentences of the story, I think we were misdirected into focusing on the content of each individual quote, rather than the context of all the quotes, combined.
AP licenses entire stories, but it also licenses a feed of AP news items reflecting just the title and lede of the story. You can see an example of licensed material at the Huffington Post. Notice that the copyrighted material in this context is not limited to an individual story, but to the grouping of titles and ledes for several different stories.
People have been making an assumption that the AP is upset that people are quoting one title, and one lede. We've ignored the hints given in relation to Drudge Retort that it was a pattern of posting, of quoting multiple titles and multiple ledes over time that ultimately resulted in the AP issuing the DMCA.
If we consider that the ledes are only 30 or 50 words, it seems unreasonable for the AP to resort to the DMCA. However, if something like the Drudge Retort duplicates 3, or 5, or more of these syndicated story titles and ledes, what the site is doing is actually "copying" what amounts to 10, 30, 30% or more of the AP copyrighted material— not a few words of an individual story, as first discussed.
If the AP charges a site like the Huffington Post to publish this syndicated set of titles/ledes at the site, and something like the Drudge Retort is duplicating a significant number from this set, using virtually the same titles and lede wording, without adding additional commentary, the Drudge Retort could very well be violating the AP's copyright, and doing so in such a way as to cause financial harm to the AP.
The issue really is, and the AP stressed this, copy and paste publication. If you copy and past the title and the lede, add no commentary, you're not adding value to what you're publishing. You're just duplicating the content. There's nothing wrong with pulling out an individual quote from a story you like and publishing it by itself. However, if your publication falls into a pattern that is very similar or even equivalent to an individual or group's copyrighted publication of the same, don't expect to get all huffy because you only publish a few words from each story.
We shouldn't extrapolate from the AP to something like delicious or the Planets (RDF, Drupal, Intertwingly, and others), because they're not the same. I don't know of anyone that licenses their syndication feed and would feel financial harm if this syndicated feed was republished with a group of others. The purpose of the Planets is to give exposure to individual publications/people who do not get exposure from being part of a major news source, like the AP. However, taking our syndicated feed and republishing it in its entirety at another site, which then runs ads that benefit the second site is a different story. In fact, if we decry the existence of "splogs" we should find ourselves on the side of the AP, if we're being intellectually honest.
Now, some would say that the AP really will go after us if we only publish one title and one lede. Please forgive if I doubt any such thing would happen. Commonsense would dictate this, if nothing else. And commonsense is what we should be using when it comes to copyright and fair use.
I'm really not defending the AP so much as I am disappointed at how quickly people are willing to pile-on when the right stereotypes are triggered. We see the AP, big company, the Drudge Retort, small publication, and we become effectively blind—to both reason and fairness. More disturbingly, we become ripe for manipulation from those who care little for the consequences of the event, as long as the attention keeps flowing. The AP can protect itself, but the same cannot be said of every target of the pile-on effect.
Comments
We've ignored the hints given in relation to Drudge Retort that it was a pattern of posting, of quoting multiple titles and multiple ledes over time that ultimately resulted in the AP issuing the DMCA.
That's not how it happened at all. AP contacted the Retort in May regarding Drudge Retort users who copied the full text of articles or a significant amount of text. Through a cease and desist and some DMCA takedowns, they objected to this and I agreed, taking down the material and notifying users of the site's policy in an announcement that did not name AP.
After the takedowns, my attorney and I notified AP of our concerns that one of the stories taken down was fair use because it was just two lines of an AP article. AP reiterated its position, and within a week or two sent the seven DMCA takedowns for the 30- to 75-word blog posts.
All the posts were recent. Without speaking for AP, I can only assume that its lawyers decided to go after short excerpt posts with the DMCA to assert its position more strongly.
I appreciate the fact that you're trying to see AP's side here. I've tried to do the same. But the fact remains that using the DMCA for extremely short excerpting is a hostile act, particularly from a media organization that relies on a fairly expansive definition of fair use in its own work. I told AP's lawyers before those seven takedowns that they didn't need to resort to the DMCA at all -- they could just send me the URLs of stories that concerned them and I'd review them promptly.
Would the story have ever come to light if AP had taken my advice and worked with me directly, rather than through the piece-of-shit DMCA? Probably not. If I ever get around to releasing all the mail, you'll see the only one attempting to have a dialogue was me. Most lawyers don't know how to do dialogue.
I can agree that most lawyers don't know how to do dialog, not the least of which is that they have to cover their own and their client's butt.
My interpretation is based on what I have heard, primarily at Rosenberg's, that it was the pattern of use that triggered the APs concern. And there is some justification for this concern. Rosenberg was, I swear, about the only reasonable voice in this discussion, and he's not taking the AP's side either. But he was willing to say, the AP has a side, too.
I'm not trying to "take" the APs side, Rogers. I'm trying to make the point that most people didn't even wait to hear all of the story before jumping on the "Burn the AP" bandwagon. People were responding to your note, even before you put the links that provided additional information.
Do you realize that there is nothing inherently wrong with a DMCA? It is a legal instrument based on laws passed by people you put in office. The whole purpose of the DMCA notice was to reassure ISPs and others hosting sites and content that they won't be liable if copyright infringing material is found on their servers. As long as access to the material is blocked after the notice, the ISP has a safe harbor. Without such protections, ISPs may not be willing to host photos, video, MP3 songs, or anything that could remotely result in their being slapped with a lawsuit.
These DMCA notices are the only valid, legal way for the AP to actually legally request that you remove the material, without slapping you with a lawsuit. The AP is not Joe Bob, saying, "Hey Pardner, that's our shit, take it down". The AP is a legal corporation, with legal responsibilities to its clients and to its members. This is the way the big boys play because it is the _only_ way the big boys can play, without having possibly negative legal repercussions. Don't like it? Hey, these laws were passed by people you helped put in office. This law passed with 100% of the vote in Congress--Dems and Republicans both passed this law.
Have the DMCA takedowns been abused? Sure. I've not found a law yet that hasn't been abused. There is a legal response back. You could have declined removing the material, and yes faced the possibility of court. The EFF et al organizations offered to help you, and would have helped fund a defense. You declined to push this issue in court. Frankly, I would have done the same. This was not the type of hill on which one makes a stand.
The AP originally said it would provide guidelines. But that was before the "Let's burn the hell out of the AP" folks started their attention getting dance--and you know who I'm talking about, and its not you. There's no way in hell the AP would release anything in this atmosphere of hostility. They still may someday, but I think whatever open dialog we could have died when folks started turning on the Blogger Media group. It would be like trying to converse with a group of rabid dogs with a steak tied around their necks.
All they could do in the end was spend a few hours with you trying to help you understand how to ensure this doesn't happen to the Drudge Retort again. It's up to you what you do with the info now.
Without these "guidelines" and without knowing what passed between you and the lawyers, all we can do is what we have always done: use our commonsense. And that doesn't mean wholesale copying of AP stories in a fit of pique.
I have sympathy for you, Rogers. I do not, however, condone the behavior of others who have been encouraging fanboys to copy the AP, only to be left out in the wild if they get busted, while those who encouraged such behavior have moved on to the next attention seeking gambit.
And I'm tired of pile-ons. This one was only the latest, and too many are being led by people who do not have the best interests of the public as primary motivation for their actions.
The preferred mode of legal analysis in the bogosphere is "When in trouble, when in doubt, run in circles, SCREAM AND SHOUT". Because if you don't scream and shout, someone else who *is* willing to scream and shout, will get the precious attention. There are some fairly subtle legal distinctions involved in fair use, made even more complicated by unsettled issues surrounding syndication and micro-selling (as in, Google Books). But there's no point in trying to talk to the typical ranter about that. They don't care. And the typical A-lister is even worse - not only don't they care, they have every incentive to fire up a mob, for the precious attention.
Saul Hansell had a good post on NYTimes blog. It wasn't treated kindly either.
"Saul Hansell had a good post on NYTimes blog. It wasn't treated kindly either."
That's for sure. Scream and shout is right. What gets me is how many rational people seem to think that screaming and shouting is a legitimate way of expressing their concerns.
I like it that you stand up for copyright in this post. I think the DMCA notice is a heavy hammer that media companies use to get attention and that one size hammer does not fit all circumstances. The DMCA lacks subtlety. A take down notice is a binary proposition. Fair use is not so easy to determine; but, for the creator of "content," the owner of intellectual property, aggressive protection establishes an interest. The DMCA qualifies as aggressive protection, I think.
The fact that the AP hit Rogers on the head with the DMCA hammer to get his attention is arguably overkill. Common sense and my intuition tell me that he did no harm to the AP, nor was that his intention. But I lack all first-hand knowledge of the case, and my information about it comes less from the primary sources (Rogers, Bob, and the AP) than it does from posts here and from the bizarre posturings of a popular blogger and her claque at another site. I paid more attention to the noise around the event of Rogers' encounter with the AP than I did to the signal from the event itself.
Scott Rosenberg presented a facet of this matter that reflects my understanding. He said:
Bottom line for me is that if I ever create anything of value (and the world is not holding its breath waiting) I'll copyright it. And, just as I won't let people cross my property or use the spring without permission for fear of granting an easement on my real property, I'll keep my eyes open and defend my intellectual property against unfair use. Is it likely that the AP was doing no more than that when they contacted Rogers?
Frank, I agree in that the AP was defending what it felt was their copyright from behavior they were concerned could escalate and eventually cause damage.
What I thought was ironic, and noted elsewhere, is that people have been saying for years now that webloggers don't need the mainstream media. If that's so, why copy what they do?
Frank,
Having posted anything online,(satisfying publication, one of the few remaining requirements) is immediately copywritten since the 1989 change to the law which while nice, removed the registration requirement for asserting copyright, which is what has us buried in the sinkhole of infringment. The US Copyright Office has been gutted and is a toothless dead wino stinking up the place.
The DMCA is the blogger's pony in the room filled with crap. It does not require a license to use, and does allow you to guard your copyrights across the web especially in the case splogger's who scrape your sites content, and post it next to their google ads, or redirection to your new russian bride, or unlimited bliss of one sort or another.
While the current noise about a DMCA notice is the pile on over the big bad media company against poor bloggers, however heavy handed it is, (and I admit a DMCA Notice is an automatic shotgun when you really just want to toss a spitball) it is the only non courtroom appearance tool that any of us have.
Having actually used the DMCA for some of my material in the past, I have a little better grasp on this issue. And it was for complete scraping of my works and not excerpts.
Your quote of Scott Rosenbergs' note, while elegant, summing up his feeling about the AP position, neglects to focus on the important issue, of the "FEED". The Feed represents the most dangerous technology to AP and every other media organization that sells news or entertainment.
Shelleys' position that it may very well be infringement being the headline and the first paragraph, if as a 'feed' is indeed a copywritten whole,(this being a derivative work, and subject to its own copyright as a different work) and since it is the totality of the 'publication', it is infringement, game over. The DMCA has done its job.
However as I mentioned on one of my postings, the DMCA from the AP were for posting excerpts from member sites, who license the AP content. Now we have a subsidiary copyright issue from the other sites, because in addition to its own reporting, the AP material is now part of a collection, which gives rise to yet another copyright claim. Remember Publication confers Copyright.
In addition to that, is the material quoted from a member site, is it the exact material that was delivered from the AP, or did rewrite change it for the local audience?
Does your head hurt yet? There is more.
Bylines do not guarantee authorship, and in the case of the AP where everything goes into the work for hire, rewrite, republish bucket, nor does attribution and/or a link to the source material constitute permission in the strict copyright universe. AP and most news organizations have a clear if hard to find All Rights Reserved Notice on their stuff.
This does not trump Fair Use!! Regardless of how many DMCA notices get tossed around!
Now that we have a brief overview of the three card monte of modern Copyright, let's move to the issue at hand, that being Fair Use.
Section 107 of the US Copyright lays out 4 factors when considering Fair Use vs Infringment:
1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. 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.
Be advised that these 4 factors are considered in a courtroom, not on the web, not in anybody's dreams and not as a gift from the pixel godmother, or buddy blogger. Which is a plus for a DMCA notice rather a Summons to Appear.
Since we are talking about textual excerpts and not photos, which are hard to excerpt, making Lane Hartwell moot, let's see what we have here.
Number 1. which arguably is the top choice of quoter's and linkers everywhere, as either commentary, conversation, education or giant heaping gobs of scorn and or ridicule, is Fair Use. From one line snark to an exposition of material to either prove or disprove ones point of view, excerpt are fair use. Permission is not needed. It is why the Fair Use Exemption was created.
News organizations should be more in tune with this proposition than anyone else as the tend to take a quote or a single fact and weave it into 500 words.
Number 2 is easy. words words words.
Number 3 is where the waters begin to rise.
It is a two parter. It is also the most interesting.
Part 1.
The 'amount' or percentage of the material quoted. You cannot put a number on this. The AP cannot put a number on this.
Remember, Infringement determination takes place in a courtroom. Any Guideline by any organization is not legally binding upon any third party that does not have a contractual relationship.
All those folks waiting for a guideline of Fair Use, better not be holding their breath.
It is an issue of legislation, not pronouncements from any company whose business model is melting in a sea of pixels on screens worldwide.
Part 2.
Substantiality. This is where the AP and other media organizations are trembling, and what Scott Rosenburg did get right. The AP 'product' is the sizzle with the heading and the steak in the first paragraph. Something to do with top down/ pyramid writing. So quoting the headline and first paragraph pretty puts paid to any notion about following links to get the Rest of the Story.
Not my fault, not your fault. which brings us to
Number 4.
the potential market for or value of the copyrighted work.
This was one of the other hooks that the AP was using as a justification for the DMCA on Rodgers site. If the excerpt was a feed, and it appeared complete, it is cut and paste infringement, and game over.
Now if it was an excerpt, and from what I have seen having followed this pretty closely including the bizarrre posturings, we need to see the money!
However, you may have to scroll up to where I outlined just a few of the various copyrights and interested parties above and beyond the AP, we now need a determination of value.
Here is some of information needed to make a determination of value like 'lost revenue' which ranks right up there in the oxymoron lexicon with Social Media Press Releases.
One the site the excerpt was taken from:
How much was the original story?
How much time in dollars was added to the cost of the story to present it on the page?
What was the value of the advertising that surrounded the story, what is the CPM/CPA?
What is the split between the AP and the member site?
How many Page Views (which is a true metric of viewership and is required to insure that advertisements are displayed in CPM/CPA calculation - Ya can't bill what you can't count ) vs hits(which are all of the individual files that make up a webpage - vastly different)
Out of those page views and using third party metrics, estimate lost revenue based on story's not excerpted. This is becoming an apples and oranges problem. This is also a wild assed guess at best.
You wanna bet me 5 bucks that the AP and all its members will open its books to us?
On the site that excerpted the story.
Is it commercial?
Where is the line between enough money paying for hosting vs site wide revenues from google or sponsors?
how many page views does it get?
how many advertisements are there?
how many times was the link to the source used?
how much money did this site make from that excerpt?
You wanna bet me 5 bucks that the bloggers and sites that are ad supported will open their books to us?
All of the above need to be satisfied for any money damages claims. Copyright litigation is public record, so don't expect to see a lot of explicit accounting records anytime soon.
The media industry thought that they had pulled a fast one on us, but the reality is that the DMCA is probably one of the best toys given to us.
Fair Use is in the top of any short list of techniques, we have on the web for discussion, opinion, or commentary. It needs to be defended. My opinion is that we will never have a definitive percentage or legal guideline on Fair Use, nor do we want one.
This is one of those deals where common sense on both sides is better. Besides we can always blame Dave Winer. He invented RSS.
"My opinion is that we will never have a definitive percentage or legal guideline on Fair Use, nor do we want one."
I agree. I think the any guidelines the AP would have provided probably wouldn't have clarified the situation. Ultimately in the end, we have to practice our own interpretation of what is Fair Use, as long as we're willing to stand by our interpretation.
I'm also up for blaming Dave Winer. Poor boy is neglected and would probably like the attention.
By the time the AP/Retort dispute was on its last legs, the amount of misinformation being spread around was exhausting. I was kinda hoping that if AP was trying to kill the blogosphere, they would hurry up and do it.
Some extremely popular bloggers took shots at Robert Cox and the Media Bloggers Association without the simple step of checking my blog, where the top entry explained exactly how he got involved. Contrary to blog triumphalism, bloggers are perfect kin to the mainstream media when it comes to firing off deeply held convictions based on inaccurate information. Look at the Wesley Clark kerfluffle today, over a comment he made that in context isn't a shot at John McCain at all.
On this story, there were some folks who did a good job on blogs, like Mike Masnick's TechDirt and Rosenberg. One blogger did something truly strange -- Simon Owens interviewed me before posting on the subject on Bloggasm. (I've never done this myself in 70 Internet years of blogging.)
I think the instinct to recoil from a mob is generally a good one. Even though in this case, the mob sent several hundred thousand new visitors to my social news site. One of the reasons I read your blog is because of your stubborn belief in fair play. You're like the Equalizer.
"You're like the equalizer."
Well, other than I'm a woman, and not British, or a spy, or independently wealthy...sure! Thanks for the compliment. I liked that show.
The only good thing about this event is that there were a lot less people piling on to it than piled on in the past. I think some people's influence is waning. In fact, I think weblogging's influence, generally, is definitely waning, and that's not a bad thing if all we can do is scream and shout.
"I'm really not defending the AP so much as I am disappointed at how quickly people are willing to pile-on when the right stereotypes are triggered."
Eh? Don't you realize that's what stereotypes are for? I'm only being semi-sarcastic, none of us is immune, we all do this, it just takes the *right* stereotype.