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What's Fair Use, Anyway? AP Has a Thought, and So Do I
Sunday, June 22 2008 @ 03:36 PM EDT

Now that AP has purported to establish fair use guidelines that would make 5 words licensable as *not* fair use, I thought I'd explain a bit about fair use and about why Groklaw no longer will link to or quote from any AP articles. I've seen reports that AP has backed off in some not quite clear-to-me way, but I notice their list of fees remains online.

To begin, since AP asserts therein a fee for 5 words or more, let's see what 4 words look like, shall we? Remember, they claim you have to pay $12.50 for 5-25 words, so you can only safely quote 4, if I've understood the 'AP Personal Version Fair Use Copyright Act'. So let's try to stay safe, using some articles from Google News Sci/Tech as a base instead of any AP articles. I'm fairly sure Google won't sue me.

First, I can't find a single headline that you could use without incurring fees, because they are all more than 4 words. For example, here are the top three headlines:

Lander Finds Ice on Mars, Scientists Say

Yahoo investor asks to weigh in on Microsoft offer

FCC backs cable over Verizon in marketing fracas

That's $12.50 already. And we didn't even quote anything from the articles. To avoid fees we could use just four words from each instead:

Lander Finds Ice on

Yahoo investor asks to

FCC backs cable over

Meaningless. You have no idea what any of them are talking about. About the only meaningful thing I can think of you can say in four words is "I love you madly."

Anyway, I think you can see the ka-ching is mounting, which appears to be the idea, and we didn't get past the headlines yet. Any blog that links to a lot of articles would have to be commercial to be able to pay that level of fee every day of the year. Since most blogs are noncommercial, that's one way to kill off blogs or alter their essence or turn them into a pot of gold.

OK. What if we throw in the headlines for free, or we rewrite them ourselves to avoid payment, then what? Would our readers have a clue whether they want to read an article if we stick to 4 words each? Using the same list, and choosing the most salient 4 words from each article that I can figure out to select for some level of meaning, you'd get this:

Pictures beamed 170 million...

directly to Yahoo shareholders

had violated privacy laws

As you see, you have no idea if you want to read the article or not. So what if you quote the amount Google News quotes in its teaser? How much would it cost? Here are the three teaser paragraphs:

Scientists with the Phoenix Mars mission yesterday declared for certain that there is ice on the Red Planet, putting them an essential step closer to answering the question that has driven three decades of Mars exploration and centuries ...

An investor with a minority stake in Yahoo Inc on Thursday urged Microsoft Corp to take its most recent proposal for a partial investment directly to Yahoo shareholders and prove its merits.

The chairman of the Federal Communications Commission was on the losing end of a vote for the first time in his tenure when his colleagues sided with the cable industry in a dispute over marketing practices.

A quick and dirty word count by eyeball gives me a little over 100 words. I tried to use the excerpt testing box AP has set up on its fee page, but I'm afraid if I click, it'll send me a bill or a cease and desist or put me in jail or whatever seems right it their eyes. Don't laugh. In a PBS documentary on North Korea, a singer there was jailed for singing a non-approved song in her own home. You never know these days.

AP's form seems to measure by characters, not by words, by the way, but they don't explain that, and there seems to be no way to figure it out without clicking 'I agree', and I don't. So let's say my quick count is correct for our current purposes. According to AP's listed form setting forth the fee structure, that comes to $50. That's even if you are a non-profit, and they define you like this:

To qualify for non-profit pricing you must represent a government-qualified non-profit organization and certify that you will use this article solely for non-profit purposes.

And that's just three links, with the headlines thrown in for free. Otherwise, it's $62.50, just to link to three articles, with a brief indication of what can be found there, if the articles were AP articles. I think AP claims you are forbidden to rewrite their stuff too, although I've never seen that laid out in copyright law either. Why, yes. Yes, yes they do . Here's the claim:

This material may not be published, broadcast, rewritten or redistributed.

Perhaps they believe they own facts too under copyright law.

They don't. And I hope someone with deep pockets sues them over this claim someday.

So what is this really all about, since it's obvious bloggers can't pay rates like this? Maybe like Darl they have visions of billions from all those bloggers out there, even if only some cave in and pay? Maybe this is about Google? You think? Maybe it's about killing off fair use once and for all?

Anyway, here's what copyright law says about fair use because although the AP has apparently not gotten the memo, it's part of the holy copyright law:

§ 107. Limitations on exclusive rights: Fair use:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Here is a snip from the historical and revision notes from Cornell University Law School's Legal Information Institute:

Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts. On the other hand, the courts have evolved a set of criteria which, though in no case definitive or determinative, provide some gauge for balancing the equities. These criteria have been stated in various ways, but essentially they can all be reduced to the four standards which have been adopted in section 107: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”

I suspect number 4 is the part that has AP's panties in a bunch. And the problem is, there's a squishiness to it. No one knows precisely in advance what is and what is not fair use in a particular situation. But there are standards or principles that have evolved through case law.

Stanford's Copyright & Fair Use page explains it a bit more:

Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. For example, if you wish to criticize a novelist, you should have the freedom to quote a portion of the novelist's work without asking permission. Absent this freedom, copyright owners could stifle any negative comments about their work.

So... I guess you could quote from AP articles and then rip them to shreds. Or make fun of them. Nah. Best not to tempt fate. They seem to have issues. And as it goes on to explain, fair use elements are subjective, and if the owner disagrees with you about what is fair use, they sue you:

The only guidance is provided by a set of fair use factors outlined in the copyright law. These factors are weighed in each case to determine whether a use qualifies as a fair use. For example, one important factor is whether your use will deprive the copyright owner of income. Unfortunately, weighing the fair use factors is often quite subjective. For this reason, the fair use road map is often tricky to navigate.

The article goes on to explain the various rules behind the fair use principle, and I'd quote it more extensively, but I wish to avoid a bill for $1,000 or whatever. Kidding. But do read it all. What you'll learn is that while AP has enunciated a guideline as to what *it* thinks is fair use, a court might not agree with them. I know I don't. So, Groklaw just doesn't link to or quote from AP any more. Period. Well. I don't rule out parody. That urge might overcome me one day. Other than that, no. No linking. No quoting. But if you want to continue to link to AP articles, you'd better ask a lawyer to explain fair use to you in the specifics of your situation in the light of the four factors judges use to decide if your use is fair or not.

Stanford also has a page showing some cases involving fair use and the internet, so you can see how it worked out in real life for others, and there is a page on when you are likely to get sued:

The difficulty in claiming fair use is that there is no predictable way to guarantee that your use will actually qualify as a fair use. You may believe that your use qualifies--but, if the copyright owner disagrees, you may have to resolve the dispute in a courtroom. Even if you ultimately persuade the court that your use was in fact a fair use, the expense and time involved in litigation may well outweigh any benefit of using the material in the first place.

No one could predict the AP claim, of course, since it's a stretch. But the bottom line of fair use is simple: no one knows in advance for sure. But that's no reason to pretend fair use isn't part of the law just because there are gray areas. Here's Bound by Law, the cartoon book that explains fair use in depth and in an enjoyable way. They might want to add a chapter or at least a footnote on AP. Here's Stanford's advice on situations that will be protective of your fair use claim:

Just as there are situations that are more likely to cause lawsuits, there are some situations that may lower the risk:
* You use a very small excerpt, for example, one or two lines from a news report, of a factual work and your use is for purposes of commentary, criticism, scholarship, research or news reporting.

* You diligently tried to locate the copyright owner but were unsuccessful, and after analyzing the fair use factors, you became convinced that your use would qualify as a fair use.

If in doubt about your fair use assessment, consult with a copyright attorney.

That is always the best advice. The law is constantly changing, for one thing, so even if a lawyer told you what fair use is two years ago, even his advice might be different now. AP would claim, for example, that quoting one or two lines is not fair use. Here's EFF's Bloggers' FAQ on fair use, but again with the same qualifier. And here's their explanation of Fair Use:

4. What's been recognized as fair use?

Courts have previously found that a use was fair where the use of the copyrighted work was socially beneficial. In particular, U.S. courts have recognized the following fair uses: criticism, comment, news reporting, teaching, scholarship, research and parodies.

In addition, in 1984 the Supreme Court held that time-shifting (for example, private, non-commercial home taping of television programs with a VCR to permit later viewing) is fair use. (Sony Corporation of America v. Universal City Studios, 464 U.S. 417 (1984, S.C.)

Although the legal basis is not completely settled, many lawyers believe that the following (and many other uses) are also fair uses:

* Space-shifting or format-shifting - that is, taking content you own in one format and putting it into another format, for personal, non-commercial use. For instance, "ripping" an audio CD (that is, making an MP3-format version of an audio CD that you already own) is considered fair use by many lawyers, based on the 1984 Betamax decision and the 1999 Rio MP3 player decision (RIAA v. Diamond Multimedia, 180 F. 3d 1072, 1079, 9th Circ. 1999.)

* Making a personal back-up copy of content you own - for instance, burning a copy of an audio CD you own.

5. Is Fair Use a Right or Merely a Defense?

Lawyers disagree about the conceptual nature of fair use. Some lawyers claim that fair use is merely a defense to a claim of copyright infringement. Although fair use is often raised as a defense, many lawyers argue that fair use can also be viewed as having a broader scope than this. If fair use is viewed as a limitation on the exclusive rights of copyright holders, fair use can be seen as a scope of positive freedom available to users of copyrighted material. On this view, fair use is the space which the U.S. copyright system recognizes between the rights granted to copyright holders and the rights reserved to the public, where uses of works may or may not be subject to copyright protection. Copyright law gives the decision about whether copyright law applies to a particular use in this space to a Federal Court judge, to decide after weighing up all relevant factors and the underlying policies of copyright law.

In short, there is a squishiness to it, and so what I see happening is that the large copyright owners are trying to alter the law by going after the little guys. And Google, of course. Everyone wants some of that pot of gold. To be fair, some of the little guys overquote, in my opinion, and they don't add commentary and analysis of their own, so there are reasons why there is some pushback. It'd be desirable if all bloggers really studied up on fair use, so as not to overreach what most consider fair use, to avoid causing overreactions. RIAA blazed the path on going after the little guy, and now AP seemed to be imitating their style. But it is conceivable that AP will come up with more rational guidelines in due time. Because that is all they can do, publish guidelines. They can't invent their own law. EFF on that, from their Bloggers' FAQ on IP:

There are no hard and fast rules for fair use (and anyone who tells you that a set number of words or percentage of a work is "fair" is talking about guidelines, not the law).

You can find lots more links to fair use and copyright law resources on Groklaw's Legal Research page, if you want to dig deeper. Both the traditional music industry and the traditional news gatherers are losing money, and they blame the Internet, of course. So while it all gets sorted out, weird things are happening.

And that is why Groklaw no longer will quote from or link to AP, and I'd ask you not to do so in your comments either. I can't pay $50 a pop, and I don't like being sued, even though I'm positive the 5 words guideline would fail. I think you've seen how horrible litigation really is, from watching the SCO saga, so do go along with this decision, please. Nothing AP has is worth this kind of hassle.


  


What's Fair Use, Anyway? AP Has a Thought, and So Do I | 199 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections
Authored by: ankylosaurus on Sunday, June 22 2008 @ 03:42 PM EDT
If any are needed. A notation such as 'mitsake -> mistake' in the title
really helps.

---
The Dinosaur with a Club at the End of its Tail

[ Reply to This | # ]

I've got one (non-clicky) link for you.
Authored by: gfolkert on Sunday, June 22 2008 @ 03:58 PM EDT
http://ap.tbo.com/breaking/national/

and notice it ain't clicky.

Imagine that.

[ Reply to This | # ]

Off Topic Here
Authored by: alisonken1 on Sunday, June 22 2008 @ 03:58 PM EDT
<humor>
Hey, did you hear the one about Darl running for president?
.
.
.
.
Neither did I.
</humor>


---
- Ken -
import std_disclaimer.py
Registered Linux user^W^WJohn Doe #296561
Slackin' since 1993
http://www.slackware.com

[ Reply to This | # ]

News Picks here
Authored by: SilverWave on Sunday, June 22 2008 @ 04:04 PM EDT
.

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Linking to an article is NOT publication of that article...
Authored by: OmniGeek on Sunday, June 22 2008 @ 04:13 PM EDT
Seems to me that, from both a technical and philosophical point of view, if I
write a blog post containing a link to an article on the AP's Web site, anyone
clicking on that post is getting the article from THEIR site, not mine. THEY are
publishing, distributing, and making that article available to all visitors, not
me. After all, if the material weren't on their Web site, my link would result
in nothing beyond a 404 page.

All I'm doing by linking to an AP story is putting up a sign on a blog that
says, in effect, "The AP has a story HERE(...) on their Web site that talks
about X." Fair use doesn't even come into the matter (if one accepts my
underlying premise), because I'm not "using" or copying or
distributing their material, THEY are. (Of course, I *could* falsely label my
link as pointing to material *I* wrote, but that's a whole different kind of
misappropriation from simple copyright violation. The only exception I can see
to this would be if I made their text load inside a frame in my Web page so it
appeared to be my text instead of theirs.)

Even if they have a subscription-only part of their site that, for example, only
allows paying subscribers to access the text, the article isn't freely
available, that changes nothing in this situation, as they are still doing the
actual publication, and they (and not me) are still responsible for making sure
only paying customers CAN see the text.

Now, I understand that some courts have gone way 'round the bend on "deep
linking" and other issues, but the principle I've stated here seems like a
reasonable yardstick that doesn't lead to the kind of obviously perverse
outcomes that some court decisions do.

One can only hope that the unsettled state of copyright law as applied to
material on the Internet will settle to a relatively reasonable set of
principles.



SAY, WHAT ABOUT GOOGLE RESULTS?
A Google search result on an AP story is bound to contain more than 4 words;
does this mean that AP is going to try to squeeze Google for every search hit?
The Google search hit snippet would seem to be the fairest of fair uses...

---
My strength is as the strength of ten men, for I am wired to the eyeballs on
espresso.

[ Reply to This | # ]

Eyeballs for ODF - the Groklaw discussion thread
Authored by: bbaston on Sunday, June 22 2008 @ 04:14 PM EDT
Share "Eyeballs for ODF" feedback here.

Do tread carefully in this thread - and certainly at OASIS. PJ says: "Stay polite at all times, of course, if you say anything, and you needn't say anything, but do follow along and please keep us posted on anything you see that sounds peculiar."
and
"Do whatever is possible to avoid engagement with trolls, here and there."


OASIS discussion list for ODF Implementation, Interoperability and Conformance

Some relevent links: original formation and discussion's archive (pick date or thread), and results so far - the draft charter: http://sites.google.com/a/od fiic.org/tc/Home

---
IMBW, IANAL2, IMHO, IAVO
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold

[ Reply to This | # ]

Headlines I can write. What's Fair Use, Anyway?
Authored by: Anonymous on Sunday, June 22 2008 @ 04:44 PM EDT
PJ,
You note that it looks like a AP counts characters,
but what about the clever use of punctuation?
And what about avoiding direct quotes by compounding and excision.

Instead of"I love you madly."
How about "I love ... you ... badly."
or "I love you, ... baldy?"

"Mars-Lander" is "Ice-Finder" sez "Scientist"
(see AP)

or

"Yahoo investor asks to weigh in on Microsoft offer"
becomes
Yahoo-investor ... weigh-in ... (re:MS) offer

or
"FCC backs cable over Verizon in marketing fracas"
--> FCC-cable-Verizon in ... fracas?

or
"An investor with a minority stake in Yahoo Inc on Thursday urged Microsoft
Corp to take its most recent proposal for a partial investment directly to Yahoo
shareholders and prove its merits."

becomes
...(Yahoo) investor .... urged ... to take ... a **** ... directly to ...*****
... and ... its *****. (See AP story)


I suspect AP might be more concerned about misquotes working around the limits,
than it ever was about excessive quotes.

Headline:
10 Aug, Utah: SCO ... wins ...big ...!

from the story:
SCO vs Novell -- Judge Kimball has delivered a withering judgment against SCO.
Novell wins recognition of their retained copyrights. This court order will have
a big impact on the future of SCO and it's continued viablity. (see story in AU
[alternate universe]).

[ Reply to This | # ]

There are precedents for facts not being copyrightable
Authored by: barbacana on Sunday, June 22 2008 @ 04:47 PM EDT

To the extent that AP articles report news, their position is weak. Taking your examples: the lander on Mars finds ice, a Yahoo investor makes some statement about the Microsoft offer, and the FCC's position on some Verizon matter - these are all factual matters, and AP does not own the facts even if it was the first entity to report them. You can paraphrase the entire content of the AP report on any of these, with impunity. This is a well-settled area of the law. Only the expression is copyrightable, not the facts.

[ Reply to This | # ]

What's Fair Use, Anyway? AP Has a Thought, and So Do I
Authored by: jslyster on Sunday, June 22 2008 @ 05:01 PM EDT
Actually, from what I've learned of copyright law, you can quote headlines in
their entirety without invoking fair use at all. Headlines are titles, and are
therefore exempt from copyright.

See below:

http://www.copyright.gov/help/faq/faq-protect.html

[ Reply to This | # ]

What's Copyrightable, Anyway?
Authored by: Anonymous on Sunday, June 22 2008 @ 05:04 PM EDT
Facts are not copyrightable. If you extract the facts from a news story and
write your own article, that's not fair use, it's reporting the facts. This
applies only to news writing. Opinion pieces are not likely to be considered
facts, in the copyright exempt meaning of the term.

Titles are not copyrightable. This is a long-standing rule in copyright law.
They may be protected by trademark, but not by copyright. Headlines serve as
titles for news articles, but may or may not be considered titles under the law.


Quotes from individuals are copyrightable, but not by the AP. They are copyright
by the person saying them, unless that person has granted an exclusive right to
the AP (or other publisher) to publish them. That will almost always be noted in
the article, as a warning to editors.

Most of what AP does is generally good. They make it possible for a local paper
to report important news from around the world at a reasonable cost. They of all
people, should know what is covered by copyright.

I think this was just a grab at the public domain by an organization that's
losing it's relevance and it's revenue stream. As newspapers devolve and
diminish, the number of local papers decreases and they amount they can afford
to pay decreases. That makes it tougher for AP to make a profit.

They were probably hoping to turn blogs into another revenue stream to replace
newspapers, since so many people get their news from blogs rather than
newspapers these days.

[ Reply to This | # ]

What's Fair Use, Anyway? AP Has a Thought, and So Do I
Authored by: Anonymous on Sunday, June 22 2008 @ 05:15 PM EDT
The reality is, AP (and most other news reporting agencies) rarely report
anything exclusive. If they have a problem with bloggers linking to their
report of a news item then as a rule everyone should simply link to another news
agency with the same news. So the traffic is driven to another web site rather
than AP's. That should satisfy both the business and their advertisers. After
all, a news agency isn't worried about profit, they're only here to get out the
truth, right?

[ Reply to This | # ]

So is AP only gunning for Bloggers?
Authored by: Anonymous on Sunday, June 22 2008 @ 05:33 PM EDT
How much does Google pay? Or is that under NDA?
Remember that CopiePresse went straight for the golden goose.
So I guess AP is using some "feature" of the American system
that the little guys always cave in first.

[ Reply to This | # ]

AP to meet with blogging group to form guidelines
Authored by: Anonymous on Sunday, June 22 2008 @ 05:36 PM EDT
This is right out of the Mega Corp Playbook:
AP is 'negotiating' with the MBA (Media Bloggers Association) to form 'guidelines'.
Who's MBA? A single-person, self-promotional outfit by a guy called Robert Cox.
More here .

[ Reply to This | # ]

PJ, Awakening
Authored by: Anonymous on Sunday, June 22 2008 @ 05:42 PM EDT
"In a PBS documentary on North Korea, a singer there was jailed for singing
a non-approved song in her own home. You never know these days."

Indeed you never know. With the travesty committed by Congress this past week,
greatly increasing the spying by the government upon citizens and granting
telcos immunity, you might have VERY good reason to worry. I doubt any GL'ers
plan to eavesdrop your shower to see how good you sound when singing. RIAA, on
the other hand, would probably love that level of abuse. I wonder who's funding
Kim Jung Il. RIAA?

[ Reply to This | # ]

What if?
Authored by: complex_number on Sunday, June 22 2008 @ 05:45 PM EDT
A link is made to the page of he article with the words 'Link here' and this is
followed by a precis of the article itself. As long as there is no direct quote
of the text then the article copyright has not been breached.

For example.
site XXX has a story about 'Water ICE on MARS'
the link could say

Site XXX has a story (Link Here). It is about a report from NASA about the
possibility of Water Ice being found on MARS.
The report says that according to a NASA spokeman....
For a detailed explanation refer to the original article.
As you are quoting (in this case) a NASA spokesman then the copyright of site
XXX is not breached as it is plainly not their original content but a statement
given by NASA. Site XXX wold be very silly to try to impose their copyright on
statements made by organisations like NASA.

AFAIK, full credit was given to the original article and if no direct quotes
from the original content that was created/added by Site XXX were made then the
rules that AP are trying to impose can't apply OR can they? IANAL but I sure
hope not.

We shall see. As they say, keep tuned.

[ Reply to This | # ]

Measure by characters, not by words!
Authored by: Anonymous on Sunday, June 22 2008 @ 06:21 PM EDT

If memory serves correct, in measuring word speed for typing purposes, 1 word is defined by 5 characters. So, let's take the subject as a count:

    Measure by characters, not by words!
By dictionary-definition - or normal - of "words", we have 6. However, by typing definition, we have 7 words.

Taking into consideration the nature of greed, it's no surprise AP would want to count by characters rather then dictionary-defined "words". They get more money that way.

RAS

[ Reply to This | # ]

AP - Associated Precioussssss
Authored by: SirHumphrey on Sunday, June 22 2008 @ 06:39 PM EDT
5 words to rule them all
and in the darkness bind them

[ Reply to This | # ]

Its all about Google.
Authored by: gotan on Sunday, June 22 2008 @ 07:14 PM EDT
Google = Pot'o'Money. MSN = Pot'o'money Yahoo = etc..

Searches bring up AP, but not usually the original at the top. My guess is they
bring up the linked commentary in the blogoshere. The commentary quotes the
news, not only removing the need to go to AP, but putting its own spin on the
news item.

As i see it, it is not only an attack on free speech, but also an attempt to
control the take on the story being published. As i see it, it's about who
controls the story.

[ Reply to This | # ]

Ominous Pattern
Authored by: digger53 on Sunday, June 22 2008 @ 08:53 PM EDT
This stuff is becoming a pattern amongst the enemies of freedom. And make no mistake about it, the AP has joined the darkside. They benefit greatly from freedom of the press, and would deny everyone else freedom to report anything. You can make book that the rest of the MSM (mainstream media) is watching closely and champing at the bit to see how much protection money they can squeeze of of the rest of us too.

The trend is ominous and depressing. It angers me enough to keep replaying "La Marseilles" while reading. This kind of arrogant power-grabbing makes me want to fight and "La Marseillaise" is about as inspirational as they come. Dig around at the linked site and look at the translation (if you need it). Serious words, the refrain, in particular. Serious words.

[ Reply to This | # ]

What's Fair Use, Anyway? AP Has a Thought, and So Do I
Authored by: Bill The Cat on Sunday, June 22 2008 @ 11:30 PM EDT
What I find interesting is when a Press Release is issued to hundreds of
newspapers and they all carry the story and then one paper submits the article
to the AP. Now the AP carries somebody else's press release with an AP
copyright on it and they threaten the other papers because the article is now AP
owned. AP steals it and then tries to extort money from innocent parties. I
hope AP gets their due.

---
Bill The Cat

[ Reply to This | # ]

The Abbreviated Vonnegut
Authored by: Anonymous on Monday, June 23 2008 @ 12:18 AM EDT
PJ,

Yearn for you tragically,

Huey

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  • Back to Latin? - Authored by: Anonymous on Monday, June 23 2008 @ 01:01 AM EDT
    • German? - Authored by: Anonymous on Monday, June 23 2008 @ 07:10 AM EDT
      • German? - Authored by: Wol on Wednesday, June 25 2008 @ 03:16 PM EDT
    • Back to Latin? - Authored by: Anonymous on Monday, June 23 2008 @ 01:56 PM EDT
What's Fair Use, Anyway? AP Has a Thought, and So Do I
Authored by: Anonymous on Monday, June 23 2008 @ 12:54 AM EDT
This just goes to show that within reason, the length of a quote does not on
it's own determine fair use status. If you were to post a four word quote on
it's own as the totality of a news story, that would arguably be outside fair
use, but if you were to quote a whole paragraph, that may be acceptable provided
it was to backup part of a much larger work.

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Going Downhill Fast...
Authored by: sproggit on Monday, June 23 2008 @ 01:47 AM EDT
There are so many issues with the mindset that must be prevalent over at AP that
it's difficult to know where to begin. So let's try something that hasn't come
up in this discussion yet...

Memes - small snippets of ideas or cultural thoughts - get passed through
society and around our culture on a regular basis. How many times have you
observed a catchphrase from a well-known movie or TV personality to come up in
popular culture? Some celebrities have even made an entire career out of the
simplest ones. Just one example to illustrate the point:

"I'll be back..."


Now let's consider another cultural phenomenon that has already been provably
exploited. How many times have we seen a "world event" been exploited
by malware authors? For example, the recent flooding in China prompted virus
writers to amend their delivery mechanism to masquerade as emails covering that
event.


Now think about the means by which AP would consider enforcing their ludicrous
claims of copyrighting down to 4 words. Suppose they go through the wording of
each article they publish after it has been posted for 7 days. They pull out the
"memes" - ie the most obvious groupings of words that might be
vulnerable to plagiarism. They then use major search engines, such as Google, to
look for duplicated on the web.


Scientific analysis of the phenomenon of memes would suggest that they will
experience many thousands of hits, purely because memes work at a semi-conscious
way and as writers we may not be aware that we are adopting them in our own,
original works. Whether we are prepared to admit it or not, anything and
everything we write will have been influenced by what we have seen, experienced
and read in the past.

For example, consider, in that last sentence, my use of the phrase,
"Whether we are prepared to admit it or not...". I could equally have
written it as "Whether or not we are prepared to admit it". Both of
these expressions are to be found all across our culture and across the
internet.

And AP wants to sue for infringement? Good luck with that.

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I wonder
Authored by: Anonymous on Monday, June 23 2008 @ 02:33 AM EDT
Has AP really thought about this? How many of those quotes link back to their
stories? Do they get paid more for the story than the link? For example, if
Groklaw carried quote from an AP story would I want to read the story,
probably. What if people who formally carried this form of unpaid advertising
stopped carrying these links? What happens to AP's income from peole reading the
full stories? Did they think?

Tufty

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heres my thought
Authored by: Anonymous on Monday, June 23 2008 @ 03:03 AM EDT
burn all the IP law
and see what happens for a decade.
SEE what gets innovated
SEE what progresses.

ALSO with the need of fewer lawyers the economy will save MASSIVE monies.

Things will become cheaper and culture can once again progress.

BUT the lawyers and the corporates of the plutocracies now forming around the
world mascarading as democracies won't ever let that happen.

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Hoist AP with its own petard
Authored by: Anonymous on Monday, June 23 2008 @ 03:40 AM EDT
How many times have AP quoted Groklaw more than 4 words at a time? They have set their limit which presumably they would themselves use when quoting the work of others, so send off an invoice pronto!

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Hey, wait a minute!
Authored by: Ian Al on Monday, June 23 2008 @ 03:57 AM EDT
If they publish guidelines, how will I ever find out? Will whoever links to the guidelines pay the price for the benefit of the world?

And another thing. What's all this stuff about paying for links and why is copyright law violated by linking? Where's the copying of protected expression? And another thing, supposing I add to my link a description of the expressive work thus,

Today the Assinine Prattlers published an article covering the licence under which their works are published AP article. This overlength, inaccurate and effectively worthless article shows just how wrong prattlers can be when trying to present the law.
I haven't copied any of their expression including the title. I have produced a critical review (my copyright, by the way, and released under the licence you can find at the link). I think that is explicitly protected as free speach under the constitution and review under the US copyright law. I cannot see how a link is a violation of copyright unless it is vicarious or contributory infringement.

On the other hand the nonsense around the MPAA and RIAA actions suggests that I might have to think again about linking to that AP article.

---
Regards
Ian Al

If you are not using Linux, you may be beyond help.

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Hoist AP on their own Petard
Authored by: Anonymous on Monday, June 23 2008 @ 08:51 AM EDT
To demonstrate the ridiculous nature of the AP demands, all one must do is take AP articles and match them to the body of text on the web. There will be untold millions of hits for sentence fragments of five, six, ... and so on word targets. Sort of like the million monkeys with a million typewriters, but a selective action already reduced to meaningful words -- an incredibly massive reduction of probabilities. The first phrase I pulled off the very front of the AP web site had some 1180 google hits on a six word fragment "and the people's right to know"/. Is AP going to claim the right to that statement? The fragment can be found at the following site: http://www.ap.org/ With AP's standard for copyright infringement, AP would undoubtedly be demonstrated as one of, if not the, largest copyright infringers on the web. It would undoubtedly be bankrupt if it paid the rate it claims reasonable to those it infringed upon.

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Vacation from News
Authored by: Anonymous on Monday, June 23 2008 @ 09:42 AM EDT
In an election year, at some point, the political dung nauseates me so badly
that I just turn off the news.

Maybe now would be a good time to start avoiding AP.

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What's Fair Use, Anyway? AP Has a Thought, and So Do I
Authored by: dracoverdi on Monday, June 23 2008 @ 11:11 AM EDT
This reminds me of the old Variety headlines. Can you use every other word?
“Lander … Ice … Mars”

I wonder what would happen if Google said “to play it safe” we won’t return any
AP content for any search and won’t provide any links to AP sites. It would be a
technical challenge, but I would bet it would hurt AP before it hurt Google. I
suppose it might be evil from a certain point of view, though.

A web wide boycott of AP would be interesting, too.


---
The problem with ignorance is that the afflicted are unaware of their ailment

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Is it infringement to use the term "Grok"?
Authored by: Anonymous on Monday, June 23 2008 @ 03:10 PM EDT
... a word made up by Robert Heinlein in his novel "Stranger in a Strange
Land", a copyrighted work. "Grok", in the novel, was defined as
(to paraphrase): "To know something fully and deeply."

pj uses it without attribution. Is she infringing? Can she claim fair use of a
copyrighted "meme"?

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Word count. - What's Fair Use, Anyway? AP Has a Thought, and So Do I
Authored by: Anonymous on Monday, June 23 2008 @ 03:39 PM EDT
P.J.

I have bad news for you.

The paragraph beginning with "To qualify..." and ending with
"...purposes." together with the paragraph beginning with "This
material..." and ending with "...redistributed." use, according
to the word count function of Open Office, 38 words. However I counted only 34
words, so I am assuming that Open Office counts hyphenated words as each
hyphenated segment as a separate word.

You mentioned AP's word count algorithm, as counting higher than expected. My
personal suspicion is that it is using an old standard for counting words as
five characters per word, that you used to get charged when you sent a telegram.
Knowing AP, it would not surprise me in the least. Would make it easy to
figure out how much to pay the reporters. "Your telgram had two hundred
words, so that's what we are paying you for."

The irritating part of all this is you are taking a direct quote from AP's web
page concerning their terms of service, and I am sure if you search their web
page with those terms,you will find the page with the terms themselves as
copyrighted under their conditions of use.

Note how careful I was to not change anything they wrote, to carefully quote
from their text, but not use more than 4 words in each quoted segment. However
if you counted all the words I used, I used six in total. So I might be in
trouble too.

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What's Fair Use, Anyway? AP Has a Thought, and So Do I
Authored by: Toon Moene on Monday, June 23 2008 @ 04:50 PM EDT
Well, there's also still "de minimis".

Fair use is not the only defense against the behemots ...

---
Toon Moene (A GNU Fortran maintainer and physicist at large)

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If you want to change the AP's Tune there is one simple way...
Authored by: Anonymous on Monday, June 23 2008 @ 05:51 PM EDT
Want to change the AP's tune? Have a major partner/supplier turn around and use
those same licensing terms against them in a lawsuit and they will change their
tune quicker than a drunk piano player. If one of their major new suppliers
turned around and made them pay every time a headline or article brief showed up
you can bet they would change their definition of fair use for that trial and in
so doing completely kill any possibility of lawsuit of their own.

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"Fair Use" can be unfair
Authored by: webster on Monday, June 23 2008 @ 07:22 PM EDT
..
Users can get spoiled on the internet. One is used to doing a lot of things
free once you get connected. Google offers many free services including a
Google News page. They have many languages, subject areas, headline areas and
personally customizable areas.

As of this writing the Google news page has 32 linked major headlines with a
handful of secondary linked headlines following each story. In all there are
seventeen hits for "Associated Press." Some of the other papers
linked are also members of the AP. Indeed almost any major paper is a member of
the AP.

Paper. What a quaint little word. One can remember the days when a
"newspaper" was thrown on to one's porch, or walk or yard or flower
bed or curb or gutter by a youth on a bicycle. This user did it for a while.
It's how one learned the significance of "before dawn." Now the
"paperboy" must have a car and not have a visa or natively speak or
read the language he distributes. This user has received the "paper"
paper for decades. He would page through and check every headline looking for
offed clients. Now he does the same but online for free. On some days he does
not even touch the "paper" paper. It is no longer unthinkable to be
without a subscription to the "paper" paper. Newspaper subscriptions
are plummeting. Someday there will be no "paper" paper delivered with
news, just ads and local news. They are disappearing like the polar bears.
There is not enough return for them on their investment in editors and
reporters. The local Washington Post just bought out or let go a good chunk of
their staff. They are finding it hard to compete with the free internet.

Now Google puts together its online "Newspaper" by fair use links to
traditional "paper" Newspaper publishers. It is easy to skim the
Google "fair use" clips of headlines and more and absorb as much of
the story as you would want or have time to read, especially when they link a
handful of sources. Google is benefiting from the editing and reporting
resources of the other papers, including the well-organized AP papers. The
papers don't even get their links necessarily clicked on for their efforts.

Now these papers also have websites that attract clicks and links, but they are
competing with "free" news sources like Google using their stuff and
advertisers like Craigslist.
So the "paper" publishers who put out to have editors and reporters
are struggling to make it all worthwhile. They are losing the struggle.

Fair Use is a flexible, undefined concept. It can change. Maybe it should
change. Fair use can mean different things in different eras: stone, papyrus,
the printing press, radio, teletype, the telephone, the internet, wimax, and
universal digital communications (UDC). What is clear is that everything is
evolving in a brave new world. Communications and knowledge are spreading. The
world is grappling with the knowledge and means to get itself organized.
Communications are changing, certainly from newspapers. Wealth as we know it is
changing.

It is a new day and the dinosaurs are trying to remain relevant and necessary.
Google ought to cut them in some way since they produce an important product.

~webster~

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Just behave like the National Inquirer
Authored by: elderlycynic on Tuesday, June 24 2008 @ 08:14 AM EDT
Ice Mars Scientists

Yahoo on Microsoft

FCC backs Verizon

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What's Fair Use, Anyway? AP Has a Thought, and So Do I
Authored by: Anonymous on Tuesday, June 24 2008 @ 10:22 AM EDT
This sounds like another "big guy" using the threat of
litigation costs to be a bully. What is affordable: the
cost of paying the AP licensing or going to court to
defend yourself? AP knows that the small guys will just
give up. It is too bad that there are no wealthy heroes
to fight the good fight and look out for the little guys.
Only the wealthy can afford to be as free as the US
Constitution says one should be.

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What's Fair Use, Anyway? AP Has a Thought, and So Do I
Authored by: Anonymous on Tuesday, June 24 2008 @ 12:39 PM EDT
"What" "if" "I" "quote" "like"
"this?"

Companies have such a sense of humor.

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Maybe this is why.
Authored by: DMF on Wednesday, June 25 2008 @ 10:55 AM EDT
Okay, I'm confused. AP puts their articles online, right?

Why?

Because they want them to be read, right? And presumably they want to make money from people reading them. But they could just as easily put up a pay-to-read fence like the NY Times and The Wall St. Journal do. Web sites - even free ones - link to those articles all the time and it is up to the potential reader to decide whether to pay or not.

So the major newspapers don't feel the need to tax people linking to their contents. They (apparently) invite it. Why/how is AP different? AP sells to newspapers. It never has had a direct relationship to the end consumer as part of its business base.

Here's the explanation as I see it: AP wants its 'innovative' license to cascade downstream to its customers, the newspapers. There are publications that buy from AP and then make their contents available for free - even the pay-to-read sites. For instance, The WSJ allows subscribers to send access tokens to non-subscribing friends so they can read an article free.

So maybe this move has two purposes:

  1. set the hook in AP's customers so AP has some control over what they distribute free;
  2. protect AP's customers from non-pay access (expect nuisance ligitation to follow).

The stick and the carrot. But the carrot is damned attractive since the newspapers seem pretty universal in blaming the 'Net for their declining sales.

This also explains why AP would make it's articles available through its own 'free as in beer' web site. That way they don't have to involve any customer (i.e. newspaper) in the forthcoming litigation.

If this was the intent it's a pretty slick, not to say slimy, move. I wonder if AP has recently hired an executive (or law firm) formerly doing business as RIAA...

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What's Fair Use, Anyway? AP Has a Thought, and So Do I
Authored by: iraskygazer on Sunday, June 29 2008 @ 10:43 AM EDT
There is a basic methodology to view fair use of an AP article. Or any other
article for that fact.

1. Is the AP article freely available on the internet? Simple rule established
via the U.S. Supreme court. If the access to the article on a web site is not
password protected then the article is open to linkage without concern for
copyright infringement.

2. More interesting is the fact that AP has no right to set the meaning of fair
use when the article can be 'freely' read by anybody, no account or password
acccess required. Copyright law designates that you can't copy verbatim the
entire article but you can quote with proper attribution without concern for
legal action from the copyright holder. This ability for all citizens must be
maintained in order to ensure the ability for rebutal in the case where the
copyright owner has provided inaccurate information. There are other laws to
protect against libel.

3. We, the people, must stop laws being created by precedence and tell our
legislators and legal departments to do their jobs as clearly defined by law in
the original constitution. Legislators create the laws needed by lawyers and
judges to render decisions. We need this approach in order to prevent
organizations like the RIAA and MPAA from using the government as a tool for
enforcing their interpretation of 'fair use.'

4. If a law doesn't cover the sitiuation then a new law must be created by the
'legislature' to deal with the situation and not precedence set at the bench.
Judges must refer a case back to the legislature when the law is unclear about
how to rule about a given situation. Judges should not be making or interpreting
meaning of laws but should rather demand that the legislature do their job and
word the laws so they are clear. Clear and concise verbiage is best.

5. All laws should be written so all with at least an 8th grade education can
read and understand. Clear, concise and to the point. If there are any loopholes
to be covered the legislature must take care of this and not the judge. Laws
that are cryptic and can only be understood by an elite group should not exist.
We need to demand that our legislature write laws that are clear and readable so
judges don't have to be concerned with interpretation.

Just a few simple changes would resolve issues related to patents, copyrights
and fair use. But too many people are profitting from the current, very badly
broken, legal system to even consider making the necessary changes to fix
things.
We are allowing the fox to watch over the hen house.

We can talk until blue in the face and nothing will get done . Unless we write
to our representatives and tell, no demand that the legislature take the steps
needed to fix the legal system so that everybody retains the rights that are
provided by 'fair use.'

Fair use is simply being eliminated by precedence and case law that the RIAA,
MPAA and other proxy organizations are helping to establish.

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