Associated Press: Unclear on the Concept of Fair Use

As Patrick Nielsen Hayden notes, the Associated Press, which ought to have some concept of “fair use,” is trying to make people pay for using quotes as short as five words long.

FLINT, Mich. (AP) — Al Gore announced his endorsement of Barack Obama Monday and promised to help the Democrat achieve what eluded him – the presidency.

In a letter to be e-mailed to Obama supporters, the former vice president and Nobel Prize winner wrote, “From now through Election Day, I intend to do whatever I can to make sure he is elected president of the United States.”

What part of “fair use,” I wonder, does the Associated Press not understand? The answer, I’m sure, is that they understand it just fine, and are aware that it’s not likely that any court in the land would agree with a quote as short as five words constitutes an abuse of fair use.

SAN FRANCISCO (AP) — Dozens of gay couples planned to rush down to their county clerk’s office Monday evening to be among the very first to say “I do” under the historic court ruling making California the second state to allow same-sex marriages.

The May 15 decision by the California Supreme Court was set to take effect at 5 p.m. While Mondays are not exactly a big day for weddings, at least five county clerks around the state agreed to extend their hours to issue marriage licenses, and many gay couples planned to get married on the spot.

Now, I can see the issue if people are posting entire AP articles on their sites without compensation. But generally speaking, most people will quote a paragraph or two, and then link back to the original article so people can see the whole article — and incidentally, drive traffic to AP member sites, who are generally hungry for visitors, because that’s how they justify their ad sales.

OAKVILLE, Iowa (AP) — The floodwaters that deluged much of Iowa have done more than knock out drinking water and destroy homes. They have also spread a noxious brew of sewage, farm chemicals and fuel that could sicken anyone who wades in.

On Monday, Bob Lanz used a 22-foot aluminum flatboat to navigate through downtown Oakville, where water reeked of pig feces and diesel fuel.

“You can hardly stand it,” Lanz said as he surveyed what remained of his family’s hog farm. “It’s strong.”

My own personal fair use compass says to me that I should quote no more than three paragraphs out of an entire news story, and to of course, link back to the originating source. Anyone who visits this site over any period time also knows that I’m pretty good at trimming back comments in which a commenter has quoted too much of an article, or song lyrics, or whatever. Because I’m pretty strongly of the belief that fair use shouldn’t be abused, and that educating people on what is fair use is a good way to keep it strong and useful in our society.

BAGHDAD (AP) — Signs are emerging that Iraq has reached a turning point. Violence is down, armed extremists are in disarray, government confidence is rising and sectarian communities are gearing up for a battle at the polls rather than slaughter in the streets.

Those positive signs are attracting little attention in the United States, where the war-weary public is focused on the American presidential contest and skeptical of talk of success after so many years of unfounded optimism by the war’s supporters.

I’m pretty comfortable with my own standard of what constitutes fair use, but if the Associated Press wants to argue with me about it, well, I suppose now they have a reason to come after me about it. I’ll be interested in seeing if they do. As an aside, I think it would be smart for AP to offer a blogger subscription account, in which bloggers are allowed to use full articles and photos in exchange for a reasonable monthly fee — reasonable for an individual to pay, mind you. That would probably solve a lot of problems right there. But that’s neither here nor there as concerns fair use.

34 thoughts on “Associated Press: Unclear on the Concept of Fair Use

  1. Gotta love it when someone makes a stand by sticking their head over the parapet. Please don’t get so laywered up that you’re too busy to keep writing!

  2. Oooo… Well, Mr. Smartypants. I suppose since you don’t drink, you’ve got to spend your beer money somewhere.

  3. I very much doubt they think this has anything to do with Fair Use, but is more along the lines of an attempt to delegitimize blogs as a valid news source, which they are becoming worried about. Much like the music industry, they’re too shortsighted to see the potential for profit here in their quest to keep a stranglehold on the news. As a former reporter, I say good riddance to the old guard, or at least as much of the old guard as we can get rid of. They’re here to stay in one form or another, but hopefully the news dinosaurs will die off from the blogospherical asteroid.

  4. May I quote the first 5 words of:

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech…”?

    Hey, who are you jackbooted thugs kicking my door down…

  5. Jonathan,

    the Bill of Rights only applies to the government, not to private individuals or corporations. The AP cannot, by definition, abridge your freedom of speech.

  6. “The AP cannot, by definition, abridge your freedom of speech.”

    De facto, this falls into the same category as the RIAA suing someone for allegedly downloading music. Or a governmental entity suing me in retaliation. My freedom is rather restricted if I’m driven into bankruptcy with legal defense expenses, about as much as if I’m jailed.

    Google on: SLAPP

    as in:

    November 12, 1998

    Seeking to stop the growing number of defamation suits filed by California law enforcement officers against citizens who file complaints against them, attorneys representing police accountability groups and free speech activists filed a motion today (November 12, 1998) in San Francisco Superior Court to dismiss SFPD Officer Joseph McCloskey’s defamation suit against Betty Evans.

    Evans’ attorneys filed the motion under a special state law (Code of Civil Procedure, Section 425.16) enacted in 1992 to protect Californians from defamation and other Strategic Lawsuits Against Public Participation (SLAPP’s) by allowing the lawsuits to be quickly dismissed if they are based on citizen’s exercise of their free speech rights….

  7. AP has already issued a (semi-)climb-down over this, so I wouldn’t worry about it too much. Someone had a rush of intelligence to the head, and realized that, in 2008, there’s actual value in someone linking to you. Who’d have thunk it.

    All that said, I’d hate to have to litigate whether this post constituted fair use. The closest you get is exemption for news and commentary, but even that seems arguable.

    My own personal fair use compass says to me that I should quote no more than three paragraphs out of an entire news story, and to of course, link back to the originating source.

    I’m pretty sure that your compass is not backed up by case law, in this instance.

  8. My compass has served me pretty well for the last decade, so I feel comfortable with it.

  9. Looks like the AP owes Bob Lanz of Oakville, Iowa $12.50. Although I suppose it’s up to Mr. Lanz to set his own compulsory licensing fees. Given his situation, I’d set them high.

  10. Don’t know if I’ll be linking to and quoting more AP stories, but I do agree with you. Swarm the bastards and make ‘em pay for being controlling.

  11. And yet they have no problem with using 3 or more paragraphs from the odd blogger who happens to run across news. Without attribution. Dicks. Much like “never get involved in a land war in Asia”, “never sue people who put your work in front of other people” should be obvious.

  12. Don’t forget, though, “Never pick a fight with someone who buys ink by the barrel.” Fortunately, the tide has turned, and one could now say, “Never pick a fight with a million people who write in pixels,” or something along those lines.

  13. My Intellectual-Property Lawyer-friend (that is, he’s my friend, not my lawyer) likes to remind me of this legal fact: “Fair Use” is a defense, not an excuse. Which is to say that even if you’re in the right, it’s up to a judge to decide that, and it could cost you a penny or two to get to that point. If it’s particularly egregious, of course, you might sweet-talk the judge into having the in-the-wrong plaintiff cover your legal bills, but you’re still out the time and other unrecoverable expenses the whole thing cost you.

  14. AP is sorta of a guild right?
    Very traditional to make non guild pay through the nose or be driven into ruin by the trade monopoly.

  15. I have no problem with others quoting: a headline, headline and lead paragraph, or even multiple paragraphs when the length of the (exclusive) news story justifies it, provided that attribution is included. If they add a link back, all the better, and I’m inclined to believe that they’re trying to do things the right way.

    I’d have a problem (and have had the problem) of folks copying the entire article and presenting it as their own, with no attribution and no link.

    John’s intention is not, I’m sure, to steal; in fact, he promotes and adds value to the original piece. He is also (arguably) not engaging in a commercial enterprise with the blog. (Several layers down I’m sure he receives some commercial benefit from the blog, but so do the people being quoted.)

    I’m pretty sure that a request to modify it (should someone think that necessary) would be better received than a DMCA notice.

  16. Seems to me useful to remember that AP is not the only game in town; there’s not a whole lot they report on that isn’t also reported on by Reuters and usually AFP (and other organizations, in spots). If they really really want not to be linked by anyone at all, it might be good to give them what they want.

  17. Frankly, I don’t see any reason to compromise on copyright other than enlightened self-interest. Copyright heavyweights are hardly meeting anyone half-way… indeed, they’re able to stay right where they are while the world spins, for the most part…

    Intellectual property is theft.

  18. What the AP needs to do is to notice that there are a million local reporters out there, and set up a scheme where the AP gets to trade content with them.

    Like the other folk in the old media business, though, it’s about the control and about the money, so it won’t happen.

  19. So, Mr. Copyright Infringer, should we all report you and collect our rewards?

    (And sing a bar of “Alice’s Restaurant”. They may think it’s a movement.)

  20. So the AP is going to start paying for all their previously ‘fair use’ quotes now, right?

    Right, that’s what I thought.

  21. If the AP comes after me, they can get a big middle finger…right in their face. In fact, I’d show up in court just to give their representatives the finger…

  22. And if they take a photo of you giving them the finger and report on it, that photo of your intellectual property (your image, your finger) is something they’re allowed to publish.

  23. I don’t know if you’ve been aware of what’s been happening with the Copynazis, Scalzi.

    The case of crime fiction writer Ken Bruen is the bellwether. I came across his work at the NYPL. One distinctive touch is that he would begin each chapter quoting a line or a few from another mystery book. I was introduced to many different writers because of that.

    Can you believe publishers now want him to *pay* for such quotes (sometimes based on *sales numbers* of his book!)? A few authors whose quotes he’s used told me they’re *grateful* for his publicity and hadn’t heard of any such thing. But I don’t think writers are being told by publishers — or greedy, desperate agents — about the damage they’ve done demanding payment for such Fair Use.

    Bruen has become thoroughly disgusted and has been reduced to quoting Blaise Pascal’s Pensées! I’m no longer introduced through him to other crime fiction writers and the world is again smashed in the face by the Iron Fist.

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