Owning the News: How the AP is Trying to Take Its Ball and Go Home

Written by: John Deininger
Researched by: Darci G. Van Duzer
Edited by: Steve Glista and Adam Gottlieb
Managing Editor: Amy E. Seely

This just in: “Patriots Lose Brady….” That’s it. “Aaron Rodgers added a….” Nope, sorry. “X-rays on Young’s knee….” Seeing a pattern to the quotes?  Anything more and the Associated Press (AP) may demand AP Fair Usepayment for quoting its article, and the prices are outrageous. Want to know what happened — if Tom Brady will ever play football again, or if the Patriots are doomed?  Too bad: at those prices, we can’t afford to tell you!

The AP, the unbiased news source for staggering amounts of information that Americans receive every day, began the summer by trying to reassert its claim to its published material. It targeted the left-leaning website Drudge Retort and demanded it remove quotes from AP stories. Other AP targets in the blogging world quickly rallied to the cause. In the only true bipartisan effort of this campaign season, both the liberal blog Daily Kos and conservative commentator Michelle Malkin are challenging the AP; Daily Kos actually appears to be daring the AP to sue, and Michelle Malkin is using the AP’s prices against it by suggesting it owes her $132,125 for the unauthorized use of her material.

Ultimately, the Drudge Retort and the AP were able to work through their differences without resorting to litigation, and the AP is now re-evaluating how it enforces its copyright — it plans on releasing guidelines for bloggers. Even if the AP’s new guidelines are reasonable, can it demand payment for the use of small quotations in a way that complies with United States copyright laws?

The AP employed Title II of the Digital Millennium Copyright Act (the DMCA) like a free-safety blitz to enforce its assertion that bloggers are illegally using copyrighted material by issuing take down notices to bloggers. Take Down notifications under the DMCA must include a statement that the copyright owner has a good faith belief that the use is unauthorized. Enter the 1976 Copyright Act.  Although the AP is clearly the copyright owner, and although the blogs in question didn’t obtain a license, the Copyright Act allows some unlicensed uses of copyrighted material. Section 107 of the copyright act identifies several categories of “fair use,” where a copyright owner can’t stop others from using her work without permission.

Whose Ball Is It Anyway?

In any copyright dispute, the first question is whether a specific quotation is even copyrighted.  Copyrights protect some material, but not all. A copyright will not protect works of the U.S. government, or works that lack originality like phonebooks. However, creative works published during the last thirty years or so are automatically protected for the life of the original author and for 70 years after the author’s death. This can create a substantial obstacle for people who wish to incorporate existing media into new publications, and has been criticized as chilling innovation and free expression.

Assuming everything the AP puts out is fully copyrighted, users of AP material need some sort of end around to bypass the copyright restrictions. Enter fair use: the fair use doctrine allows individuals to use copyrighted material for “limited and transformative purposes.” In practice, this generally means things like commentary, criticism and parodying of otherwise copyrighted materials. The theory is that society benefits from these unlicensed uses because it provides knowledge for informed decision-making by consumers and more efficient use of resources.

Courts generally examine several factors to determine whether fair use applies.  These include the 1) purpose and character of the use, 2) the nature of the copyrighted material, 3) the amount and the significance of the portion taken, and 4) the effect of the use upon the potential market for the original work. The first part of the fair use test looks at whether the user changed the material by adding new information that changes the viewer’s experience. If a user has sufficiently changed the tone or meaning of work then no copyright violation may have occurred. The second factor involves a policy decision that non-fiction works may deserve broader dissemination. So, facts about Tom Brady’s chances of ever playing again (and other factual information) will benefit the public. Fair use of non-fictional works is often an easier argument.

The third factor essentially means that the less copyrighted material directly used, the more likely that copyright violation will be excused as fair. However, if the ‘heart’ of the original material is used, then using even a small amount can be a copyright violation. The fourth factor looks at whether the use directly deprives the copyright owner of income. Finally, while not a statutorily based factor, judges will often consider if the use is “good or bad.” Consider the case of Walt Disney Productions v. Air Pirates. The Ninth Circuit Court of Appeals determined that a “a rather bawdy depiction of the Disney characters as active members of a free thinking, promiscuous, drug ingesting counterculture” was a copyright violation and not fair use. Even though much of the Ninth Circuit’s reasoning was probably undercut by Campbell v. Acuff-Rose Music, Wendy Gordon, a Boston University law professor, thinks “most courts are too sexually ill at ease to give Air Pirates fair use.”

Courts applying fair use have made it a rather effective defense for users of copyrighted materials. The Second Circuit Court of Appeals in NXIVM Corp v. Ross even allowed the fair use defense when a user of copyrighted materials obtained them under false pretenses, and republished large portions verbatim to criticize and ridicule the original. Because Ross sufficiently transformed the character of the material he copied, the court ruled that NXIVM could not prevent him from publishing the criticism. In fact, parodies of copyrighted material actually enjoy special protection. In Campbell v. Acuff-Rose Music, the Supreme Court acknowledged that “the heart is also what most readily conjures up the [original] for parody, and it is the heart at which parody takes aim.”

Recently, Stephanie Lenz, a Youtube user, challenged Universal Music after Universal alleged that she infringed its copyright of a Prince song, which prompted Universal to issue a DMCA takedown notice to demand that Youtube remove the video. While that case is far from decided, Ms. Lenz recently had a small victory, defeating Universal’s motion to dismiss. The judge’s order suggested that copyright holders must evaluate whether the alleged violation makes fair use of the copyrighted material to proceed under the DMCA. Before copyright detractors chalk one up for the little guys, note the judge also stated that a copyright owner only needs to subjectively consider fair use and doesn’t need to conduct a full investigation before going after the user.

Playing Keep-away

Where does that leave the AP? The AP has reportedly backed off from their extremely aggressive enforcement of copyrighted material policies.  Part of this response might be the result of the AP’s realization that their challenge to the Drudge Retort is based on shaky legal ground.

In its dealings with the Drudge Retort, the AP claimed “hot news misappropriation.” Hot news misappropriation blocks a competitor’s use of time-sensitive information because the creator invested time and money to produce it, and should get to recoup those costs through exclusive use until the information reaches the public domain. Unfortunately for the AP, the legal basis for hot news misappropriation claims fell out of favor after the 1976 Copyright Act. More importantly, courts have narrowed the use of that claim even further. The Second Circuit only allows its use if, among other things, the plaintiff generates the information at a cost, the information is time sensitive and the defendant’s use constitutes free riding.

The AP’s forthcoming guidelines may provide clarity on this issue, but they could dirty the water even more. As David Ardia, director of Harvard Law School’s Citizen Media Project points out, “they cannot narrow the scope of what is permissible under the fair use doctrine.” The AP’s policy likely needs to shift from the previous stance from early-summer 2008. If the AP doesn’t conform to the the Fair Use Doctrine more closely it will certainly face a lot of angry bloggers more than happy to take on the legal challenge.

Now, back to football and Vince Young. “Titans’ Fisher asked for police….” Darn, that’s $12.50.

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3 Responses to Owning the News: How the AP is Trying to Take Its Ball and Go Home

  1. This is very cogent and important analysis. But. Why would the AP recognize Fair Use after the MPAA and RIAA have spent the last decade denying that it exists in — altogether now — The Digital Age?

    Starting with WIPO the US notion of Fair Use has been under attack. Before that even, with the US DAT tax, the notion that digital media could not exist with pre-digital copyright law has been a staple of the content mafia’s approach. Nevermind that a “perfect digital copy” at 128 kbps is nothing of the kind.

    Discuss.

  2. joshua Crisp says:

    Boo hoo! You know, another solution is to go out and do your own actual research instead of regurgitating what the AP already reported. Remember when news stations actually reported news? Also, I could care less about the rights of internet only news organizations without their own reporters. If a blogger doesn’t have anything to say that hasn’t been said by someone else, then why are they blogging?

  3. steve says:

    holy lag time, batman…

    Jeff @ 1: do you own any DAT media? Me neither. Do you own a DAT player? Me neither. Do you know anyone who owns a DAT or a DAT player, either in their home, or in their car, or a portable version, or…

    You get my point. DAT is deader than vinyl. DAT is even deader than minidisc. The Diamond Rio case plus the convenience of iPod and mp3 simply destroyed the market for other formats. So the so-called “DAT tax,” like the Canadian tax on blank recordable CDs, is pretty much moot at this point. Unless, that is, you want to argue that the tax on the blank DAT media and players helped motivate consumers to spend their entertainment dollars elsewhere– like on 200 GB hard drives…

    As for 128 kbps, all the cool kids encode VBR :-D

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