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.

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  1. Johannes

    Compare this to the situation in Germany. There is currently a broad movement of publishers blaming Google for using their content. e.g. see the german association of journalists: http://www.djv.de/SingleNews.20+M5da369da453.0.html (German). They request laws against Google’s monopoly on opinions (!). They say, it wouldn’t be acceptable that authors had to give their works for Google’s commercial purposes. In fact, they requested to expand the competence of the German antitrust office (Kartellamt) to make it examine monopolies on opinions…

    Google’s answer was quite funny: http://googlepublicpolicy.blogspot.com/2009/07/working-with-news-publishers.html notifying news publishers how to use robots.txt to exclude their pages from Google’s index.

    This is so ridiculous…

  2. Jon

    Google already pays the wires healthy annual subs for use of their articles. Google even hosts AP and AFP content in order that they can link to it as both AP and AFP have no public facing web site with open content.

  3. Jon:
    AP actually does have a public-facing site buried in its “hosted” server. Easiest way to find it is to pop “AP rss feeds” into Google.

    Once you are there (all those are public, too, which is how a lot of spam pages are getting those AP stories the wire service complains about), just go to the left rail and click on Top News. You’ll see AP even has put an ad on the site.

    See more at my blog

  4. So the solution seems like a pretty simple Web 2.0 problem. We just need to sit down and think about the set of “probable” headlines that will occur over the next year. Things like “Obama Healthcare Plan Fails”, or “Obama Healthcare Plan Succeeds”. Then we put up a wesite where everyone can contribute their headline list. We claim restrictive copyrights to the list, and charge AP a hefty fee when they infringe. That should fund a bunch of open source projects!


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