Associated Press Tramples on Fair Use Rights

That great, reliable engine of daily news, the Associated Press, has just given us a case study on the dangers of treating copyrighted works as “property.” The AP apparently regards its news articles as its exclusive property, and treats even partial use of them as theft. On its website, it now requires Web users to buy a license to excerpt its articles based on the number of words quoted! If you excerpt 5-25 words, the fee is $12.50. If you excerpt 26-50 words, that will be $17.50. More than 251 words will cost you $100.

Then AP goes a step further by stipulating in its license that it “reserves the right to terminate this Agreement at any time if Publisher or its agents finds Your use of the licensed Content to be offensive and/or damaging to Publisher’s reputation.” In short, not only do you have to pay for content that is in fact available to you for free under the fair use doctrine, you are prohibited from using the excerpt in a way that might reflect poorly on the AP! So much for media criticism!

Part of the problem is the very language of “property.” Once a work is regarded as “intellectual property,” that vocabulary suggests that its “owner” has an absolute right to control how it may circulate and be used. “You wouldn’t use my car or walk into my house without permission, now, would you?” is the standard analogy used by various media industries.

As a matter of law, however, copyright is a public policy bargain between authors and the public, not an absolute property right. The public has explicit rights to quote copyrighted works for free, without advance permission, for noncommercial, personal, educational and academic purposes. This right is the so-called “fair use doctrine.” What AP is trying to do is to impose its own private system of fees for its content, fair use be damned.

The whole issue came to light after the AP sent a legal notice to blogger Rogers Cadenhead, who runs a parody of the Drudge Report called the Drudge Retort. AP said that several of its articles had been used in an improper way. When the blogging world got wind of AP’s powerplay, it went berserk. The widely read Boing Boing blog published a stinging rebuke and Media Bloggers Association also checked in with a complaint.

Perhaps chastened by the outcry, AP said that it would develop guidelines for use of its articles — which further inflamed bloggers. Why should AP get to dictate what the rules for excerpting will be when we have a body of copyright law and court decisions that describe (however vaguely and inconsistently) the scope of fair use rights?

AP insists that it has a legitimate journalistic concern in preventing its articles from being quoted out of context and a business interest in protecting the value of its articles. Ah, but that’s just the point of fair use: the copyright holder does not have the authority to determine what sorts of follow-on uses may occur. That’s our prerogative, not the copyright holders’.

The AP might wish to tread a little softly here. What if its news sources decided that they needed to be paid for their comments to reporters? After all, aren’t they helping AP create value? And what about those trademarked corporate logos that occasionally appear in the background of AP news photos? Isn’t AP using them without permission? Perhaps universities should charge AP for letting it use portions of their scientific reports.

This is the madness that AP invites when it insists upon its own “property rights” at the expense of common-sense public needs.

As the Washington Post reported yesterday (June 17, 2008), talks between the AP and bloggers will soon take place to negotiate an acceptable working solution. It would be great to have greater clarity to help avoid legal misunderstandings. But if the negotiations are an occasion for further bullying to expand private copyright control and diminish fair use rights, we should consider it a declaration of war against the common good, and respond accordingly.

Originally published by David Bollier at Onthecommons.org under a Creative Commons Attribution license.