Like a foreign despot who tries (unsuccessfully) to change the culture of a country he takes over, the AP is trying to “crack down” on what it perceives to be misuse of its news content on the Web. That’s fine when we’re talking about wholesale, unauthorized copying or redistribution but the AP wants to track and presumably punish use of content that is probably within the realm of “fair use.” According to the NY Times:
Tom Curley, The A.P.’s president and chief executive, said the company’s position was that even minimal use of a news article online required a licensing agreement with the news organization that produced it. In an interview, he specifically cited references that include a headline and a link to an article, a standard practice of search engines like Google, Bing and Yahoo, news aggregators and blogs.
If the excerpted quote were from an AP article, presumably AP (under its new tougher approach) would ask for some sort of compensation or license — or ask me to remove it.
Here’s the legal test as laid out in Wikipedia through which a court determines whether some content use is fair or a copyright violation:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
The newspaper industry is desperate and like some sort of wounded creature it (through AP) seems to be lashing out in a sort of indiscriminate fashion with this would-be crackdown. Newspaper execs no doubt see it differently for a number of reasons, some of which are justified and some of which are not. I’m a newspaper fan and supporter but the newspapers have unfortunately leveled charges against companies like Google, which distract from their own failure of vision and execution in the market.
If someone is stealing AP articles or taking 300 of 500 words with some kind of perfunctory link at the bottom that’s fair game. But “links and headlines?” That’s fair use. And it’s also part of the “culture” of the Internet.
If AP does try and enforce “minimal violations” that it sees (headlines and links) it’s going to get sued or its suits will be contested and appealed. I guarantee you that we’ll see some appellate court case — and perhaps eventual Supreme Court case — confronting the need to define fair use in the Internet era.
Most judges will probaly favor a more “liberal” construction of fair use than a restrictive one (that would benefit AP). So maybe, in the end, AP is doing everyone a favor in some twisted and indirect way.
Related: FAQs about the AP content registry from PaidContent.