decoration decoration

When you want to know more...
For layout only
Site Map
About Groklaw
Legal Research
ApplevSamsung p.2
Cast: Lawyers
Comes v. MS
Gordon v MS
IV v. Google
Legal Docs
MS Litigations
News Picks
Novell v. MS
Novell-MS Deal
OOXML Appeals
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v Novell
Sean Daly
Software Patents
Switch to Linux
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.

To read comments to this article, go here
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.

  View Printable Version

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )