Blogosphere Reacts to Associated Press Assault on Fair Use Doctrine

Should the Associated Press have the right to set its own standards as to how much quoting from an Associated Press article constitutes fair use and how much requires the payment of a royalty?

The Associated Press ("A.P.") apparently thinks so, based on recent coverage of its plans to adopt blogging guidelines for quoting A.P. articles. Check out A.P.'s new royalty price list. Note that the royalty fee starts at quoting 5-25 words.

The New York Times reported on the controversy as follows:

Last week, The A.P. took an unusually strict position against quotation of its work, sending a letter to the Drudge Retort asking it to remove seven items that contained quotations from A.P. articles ranging from 39 to 79 words.

On Saturday, The A.P. retreated. Jim Kennedy, vice president and strategy director of The A.P., said in an interview that the news organization had decided that its letter to the Drudge Retort was “heavy-handed” and that The A.P. was going to rethink its policies toward bloggers.

The quick about-face came, he said, because a number of well-known bloggers started criticizing its policy, claiming it would undercut the active discussion of the news that rages on sites, big and small, across the Internet.

The A.P.'s announcement caused an uproar in the blogosphere, as The New York Times writer, Saul Hansell, reported in a follow-up article:

There was a lot of anger in the blogosphere last week over The Associated Press’s assertion that some blogs were infringing its copyright by publishing excerpts of its articles. . . . A number of bloggers I respect a great deal didn’t find the A.P.’s openness to their ideas to be enough and have declared war on it. As someone who is both a blogger and an employee of a mainstream news organization, I worry that this hotheaded response is part of what gives blogs a bad name.

There was no doubt that the reaction to the A.P.'s plans was overwhelmingly negative. Tech Crunch asserted that its new policy was that A.P. stories are banned. BuzzMachine had a similar reaction, essentially critiquing the A.P. as old journalism vs. the blogosphere's manner of quoting as new journalism. Progress Bar predicted that the "backlash was going to be enormous." Snowflakes in Hell asserted that the "mainstream media is declaring war on blogs."

Given the strongly adverse reaction to the A.P.'s actions, it seems very likely that this issue is headed to the courts, unless the A.P. suddently has a change of heart. By attempting to impose a licensing fee over content uses in excess of four words, the A.P. is essentially trying to single-handedly throw out--or at the very least redefine--the doctrine of fair use. It is difficult to see how a quoting five words from an A.P. article would require the payment of a licensing fee. Under such a rationale, many of us in the blogosphere could be collecting some serious royalties ourselves--some of which would come from "old journalism" news organizations.

The New York Times addressed the legal side of this controversy as follows:

A crucial part of the legal question here, and probably the ethical one too, is whether by using its material, a Web site inhibits the A.P.’s ability to earn money from its work. Several lawyers suggested to me that the A.P. may have a hard time proving how a few paragraphs in a blog represents real harm. Most blogs aren’t reporting news in direct competition with the A.P.; they are commenting on the news or offering a place to discuss news. Some sites, and this gets a tad dicey, are mainly about presenting lists of links to articles that the blogger, or the members of a community, find interesting. . . . Still, if enough people click on links from these sites back to the sites of the A.P. clients who publish its articles, value is being created for the A.P., not destroyed.

The Citizen Media Law Project took this analysis one step further, stating as follows:

[I]t is very likely that the posts AP is complaining about on Drudge Retort are permissible fair uses under the Copyright Act. First, several posts appear to be offering commentary on recent news items. The use of another's copyrighted work for the purpose of criticism, news reporting, or commentary, will generally weigh in favor of fair use.

Second, all of the posts use fewer than 80 words from the original AP articles. While there is no bright line that defines how much of a copyrighted work can be copied and still be considered fair use, courts will consider the amount and importance of the material copied in assessing what is permissible. I can't tell how long the original AP articles were, but it's likely that all of the articles were substantially longer than 80 words.

Third, it is hard to see how the posting of AP headlines and 80 word snippets could possibly impair the market for the original AP articles (when evaluating fair use claims, courts are most concerned with whether the copying will undercut the market for the original work). Instead, the posts AP is complaining about would seem to be doing just the opposite. Users of Drudge Retort, and sites like it, post these headlines and snippets for the very purpose of alerting others that some interesting piece of news exists. These snippets invariably include links to the original articles and serve to drive traffic to the site hosting the original AP story.

Mike Markson in his blog Marksonland made an interesting point that the real problem here from a business perspective is AP's business model, as the AP is putting out great content and not seeing the financial benefit from it. Of course, this brings us back to the old journalism, new journalism dilemma.

We at the Silicon Valley IP Licensing Law Blog will keep you posted as this controversy further unfolds. My suspicion is that the controversy is far from being over.

In the meantime, I guess I am going to take the position of other bloggers in the blogosphere and stop quoting the A.P. until this issue is resolved. I'm not sure I'm ready to drop my blogging style entirely, since as a licensing attorney who does a significant amount of work with copyright law, I think that the A.P. is going out on a limb and trying to make new law. I suspect that the A.P. is going to get the opportunity it appears to be seeking to see if courts will side with its new view of the world with respect to copyright law. However, I think I will let someone else fight that battle.

And fellow members of the blogosphere: you will be relieved to know that my firm is not going to be launching a royalty collection site any time soon. Please feel free to continue quoting my blog postings to your heart's content. Some of us actually understand the web and appreciate the coverage.