More on the settlement: AP’s nightmare identified

Robert Cox, the Media Bloggers Association guy who represented Cadenhead in this matter, has a lengthy post about what happened this week. Go read it. I wasn’t there but I’ve dealt with lots of similar situations as an editor and this all sounds pretty believable. Congrats to Cox for doing what good lawyers do in situations like this: do your best to achieve your client’s goals but also do your best to keep everyone out of court.

Now here’s the crux of what’s at stake. The sticking point for AP seems to be their belief that a headline-and-first-paragraph excerpt is not covered by fair use:

AP’s argument has been that a large percentage of the value of what they deliver is carefully packaged in that content and so the publishing of that information without permission was a copyright violation.

Here is AP’s fear: if they say that doing this once is OK, then, well, doing it twice is probably OK, and you’re rolling down a slippery slope to their nightmare, which is someone creating a whole site based on a reposted feed of AP’s heds and lead paragraphs.

At what number, then, does fair use turn into infringement? Any answer’s going to be arbitrary. The AP lawyers’ suggestion, then, I imagine, is: set the allowable number to “zero” and you don’t have a problem.

The trouble is that fair use law does not, apparently by intention, draw a simple line. It sets up a bunch of criteria that you have to weigh. And so the nightmare reposted-feed site is almost certainly not a fair use. A Digg home page with lots of AP stories? Well, on the one hand Digg is a business that conceivably is taking business value from AP; on the other hand, Digg users rate and discuss stories, so they’re adding them. And AP accounts for only a little bit of Digg’s total volume of stories.

So there are complex, messy issues here. We on the Web can sit back and say, “AP doesn’t get it! They should love us for linking to them!” But AP has what economists call an “incumbent business model.” They have a way of obtaining revenue that they feel is threatened. That they will try to protect it is simply a given. (That AP is technically a cooperative owned by its members adds yet another level of difficulty to the conflict. It probably makes it harder for AP to take any but the most conservative course, since a riskier move — “Let’s bet on the power of links to make our content more valuable!” — would require a broader consensus from a group of already-embattled news executives.)

This story is going to keep unfolding in unpredictable ways. What’s important to me is that, when the dust settles, Joe Random Blogger doesn’t have to worry about the AP lawyers sending him takedown letters because he wanted to post about the day’s news.

UPDATE: Funny to see AP’s own story on this topic linked to from Romenesko with the following text: “AP vs. blogger: resolved.” Gee, that was easy…!

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Comments

  1. re: We on the Web can sit back and say, “AP doesn’t get it! They should love us for linking to them!” But AP has what economists call an “incumbent business model.” They have a way of obtaining revenue that they feel is threatened. That they will try to protect it is simply a given.

    Excellent point. But regarding the incumbent business model (or “I.B.M.”), press-watchers should read Dorian Bankoil: The AP’s Real Problem Isn’t Bloggers: It’s Its Own Newspapers.

  2. Great post. Their dream business model is over. Social networks see no value in their position. They should spend their effort on reengineering for social networks not fighting them.

    Can’t fight the revolution.

  3. Scott wrote:

    Here is AP’s fear: if they say that doing this once is OK, then, well, doing it twice is probably OK, and you’re rolling down a slippery slope to their nightmare, which is someone creating a whole site based on a reposted feed of AP’s heds and lead paragraphs.

    That sounds to me a whole lot more like a splog than something that anybody would find useful. And I suppose that every blogger has some of their text scraped for use in splogs. It’s annoying, but I doubt that either bloggers or the AP is going to lose money over this sort of thing. So if this is really the AP’s big fear, I think it’s misplaced. It’s an annoyance, not a threat.

    -Erik

  4. Chiropetra

    Eric Wrote:
    That sounds to me a whole lot more like a splog than something that anybody would find useful.

    Actually Eric it’s extremely useful. It’s called a “news digest” and it’s a basic tool for editors, not to mention the source of most of the “news roundups” you find in your local paper.

    However I think the real answer is that a page full of headlines and first paragraphs would, as has been pointed out, not be fair use. A single headline or lead in a blog post almost certainly is fair use, much as the AP hates the idea.

    I also think Scott has nailed the basic dynamic: A combination of newspaper editors afraid of the web and a sclerotic organization that can’t get its head into the 21st century. So they cry havoc and unleash the lawyers of war.

    The bloggers will survive nicely, thank you. But I’m not so sure about the AP.

    Pity. My second job in journalism was as a reporter/editor for the AP and I remember most of that time fondly.

  5. I do agree with Eric that making a site that is re-posting links to AP’s story isn’t much of value. Everyone who is interested in a “news roundup” can go to Google News or Yahoo News which have licenced the content streams from AP. You can only make a site successful if you are adding value that you cannot get somewhere else, and then it will be more difficult for AP to say that such a site is simply “stealing” their content.

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