A.P. goes nuclear on fair use

“A.P. Cracks Down on Unpaid Use of Articles on Web.” That’s the headline on a New York Times article right now. But if you read the article, you see that the Associated Press’s new campaign isn’t only about “unpaid use of articles,” it’s about any use of headlines as links. In other words, it sounds like A.P. is pulling the pin on a legal Doomsday Machine for news and information on the Web — claiming that there is no fair use right to link to articles using a brief snippet of verbiage from that article, or the original headline on the article.

In other words, if that Times story were by the A.P., I would be breaking the A.P.’s new rules just by using the ten words at the beginning of this post. My new book, which is filled with hundreds of quotes and URLs that (on the book’s website) link to the sources, would be a massive violation of the rules.

The A.P. seems to want to try to squeeze money both from Google and from sites that aggregate headlines. The Times story says: “The goal, [A.P. president Tom Curley] said, was not to have less use of the news articles, but to be paid for any use.” (Under A.P. rules, could I quote that?)

This move is foolish and self-defeating. If it has to, Google can simply block A.P. stories, and I’m sure it will choose to do that rather than agree to pay A.P.’s new fees. More simply, Google’s lawyers can point to the fact that any publisher can already opt out of Google’s system any time he/she wants to.

The A.P. isn’t going to build the hundreds-of-millions-of-dollar business it speaks about based on this effort; the most it can hope for is to sequester its version of the news off in a corner from the rest of the Web, where fewer and fewer will read it.

The danger is that this conflict will make it into the courts and some judge will narrow the fair use principle in ways that hurt both the Web and the free flow of information in our society.

As I wrote last year:

In the meantime, the biggest priority here for those of us who care about the long-term health of the web is that we don’t wind up with a terrible legal precedent that defines fair use in some newly constricted way. The people who are calling the AP out on this aren’t crazed piratical scofflaws; they’re journalists and authors, just as I am, people who pay the rent based on the value of the content they produce. But you need some assurance that you can quote brief excerpts or you can’t write non-fiction at all.

For a primer on this issue, you can see these posts (first, a second, a third, and a wrap) from last year, when A.P. got into a scrap with well-known blogger Rogers Cadenhead by sending him a legal takedown notice.

UPDATE: Zach Seward at Nieman Lab has a post covering some of the legal aspects of this story.