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Aug. 14, 2009, 12:35 p.m.

Who, really, is The Associated Press accusing of copyright infringement?

The Associated Press document we posted yesterday is in line with the consortium’s most bellicose rhetoric on copyright. It begins, “The evidence is everywhere: original news content is being scraped, syndicated and monetized without fair compensation to those who produce, report and verify it.”

Because we obtained the document, the AP put me on the line with its general counsel, Srinandan Kasi, who spoke for an hour about various issues, including his office’s view of copyright, fair use, and the republication of AP material. Mostly, he tried to avoid any fine lines, but I still learned a lot, and you might be interested as well. This is obviously a crucial issue in the future of news, so I hope the following discussion adds a little bit of information — if not clarity — to how one major news organization is approaching copyright on the Internet.

Headlines and ledes

Tom Curley, president and chief executive of the AP, raised a ruckus last month when he seemed to tell The New York Times that using an AP headline that linked to the original article would require a copyright license. Among the more entertaining responses to that position was a blog whipped up by developer Andy Baio, who used the AP’s own RSS feeds to republish headlines, ledes, and URLs in the style to which Curley appeared to object. Baio called the simple act of protest Associated Repress.

I described the site to Kasi, who told me: “I think that the person doing that: wonderful. We celebrate free speech.” But what if that site carried ads? Could the use of AP headlines and ledes ever amount to copyright infringement? “At some point,” Kasi said, “the variables start to come together that, absolutely, it would be actionable.” We were getting somewhere: Although Kasi didn’t want to lay out a rubric for the AP’s legal strategy, the most important variables appear to be frequency of use and whether that use constitutes a significant, competing, commercial business. So, no, Baio probably wouldn’t get a cease-and-desist letter for his barely read site, even if it were littered with ads, but a more prominent aggregator could.

News aggregation sites

One complication in discussing the AP’s copyright stance is that almost all of the major news aggregation sites — Newser, The Huffington Post, Google News — are customers of the AP and fully licensed to carry its full-length content. But the AP has said it is reviewing those agreements, no doubt hoping to extract more revenue from some of the most popular news sites on the Internet.

If, say, Newser were to balk at a pricier contract and begin treating AP content the way it deals with other news organizations — headlines, excerpts, links — I get the impression that the AP would take action. “There’s no question that we see value in headlines,” Kasi told me, “and that value in the headlines is that we’d rather that it point to our publishers’ sites than some other site, for example, if all the other site is doing is simply cutting and pasting our content.”

That said, Kasi was concerned about appearing litigious and dialed back some of the AP’s strongest public statements. (Statements, I might suggest, that could be good leverage in renegotiating those contracts.) Thus:

When you look at the things that we’ve actually enforced or pursued, it’s a small handful of situations. Even the ones where there’s a lot of noise being made, it is to point out the kind of conduct, of systematic conduct that we want to have addressed. But if you really push it to the extreme of, “OK, how many do we legally enforce in a court of law?” It’ll be less than the number of fingers on a single hand.

Wholesale copying

It’s true that fighting even clear cases of copyright infringement is generally a losing proposition. (Or as Kasi put it: “If we pursued every one of these things, we wouldn’t be focused on our real business.”) Without prompting, he mentioned the approach taken by the Fair Syndication Consortium, which I wrote about in June, to extract a share of revenue from ad networks that serve ads on spam blogs. That’s a defter approach than litigation. And I think some critics of the AP’s copyright stance would be surprised to hear this from Kasi, referring to a hypothetical piece of content:

Someone decides that they just want to cut-and-paste — a simple example — they decide to take the entire thing. And they put it on their blog and say, ‘Can you believe that this is going on?’ … In that example, we may simply decide: It’s a one-off use, it’s got social policy considerations, it’s useful to have this information. Perfectly fine. But if someone is making a living of waiting for these things to evolve and every single time took it and put it elsewhere, did something with it, we certainly will look at it.

Last month the AP favorably settled its lawsuit against All Headline News, which had been rewriting the consortium’s stories en masse without even so much as credit. Previously, the AP has gone after grayer areas of reuse: Its legal department persuaded the Drudge Retort to take down six excerpts of AP content that ranged from 33 to 79 words. It sounds like the AP is now backing away from that view in favor of only pursuing sites that constitute significant competition. Here’s Kasi:

There is tremendous interest in the content. People want to use it, which is good news. And the bad news would be, if there’s bad news, some of it falls outside of the purview of our permissioning and our understanding of what we would accept as acceptable practice, because if left untouched, it actually erodes our business opportunity in ways that are actually quite material. So I don’t know that there’s a magic formula because, really, we strictly follow this on a case-by-case basis.

Of course, the ambiguity of that position combined with the more-strident public statements of AP executives can create what David Ardia, our friend and director of the Citizen Media Law Project, called FUD: fear, uncertainty, and doubt. Amateur bloggers — the very people that the AP says it doesn’t intend target — might be the most likely to shy away from using AP content because they don’t have Arianna Huffington’s lawyers to write a brief for them. So when AP chairman Dean Singleton said this…

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…he may have been speaking to Google News or The Huffington Post or spam blogs — who knows — but the people who heard him loudest were the individual bloggers who constitute the web’s circulatory system.

Encouraging use of AP content

That’s too bad, because I believe the AP’s senior vice president of global product development, Jean Seagrave, when she insists, in reference to their recent plans: “This is not digital-rights management that says no you can’t. It says this is how you can.” Recent posts by Doc Searls and Bill Rosenblatt have been good in this regard. And Kasi told me, “To characterize this entire thing as driven by an enforcement mode misses the point entirely.”

The AP would like to encourage use of its content — even full content — under terms that might not be so different from the APIs released by The New York Times and NPR. (Then again, it might be very different. The AP thus far hasn’t said what restrictions it will attach to its APIs.) I asked Kasi for an example, and he said that a mobile developer who wanted to include the AP’s articles or videos in an iPhone application could do so, probably without paying for access. Addressing the hypothetical developer, he said, “If this becomes a runaway success, I want to be part of this kind of business arrangement with you. In the meantime, if you want to experiment, go at it.”

Further information

To explore these issues in more depth, I’d recommend the 7-minute interview with Kasi’s counterpart at The New York Times, Ken Richieri, which we wrote about last month. He moves the discussion away from fair use and into unfair competition. But if you’ve got an hour this weekend, better to check out the full podcast, which includes some good stuff from the AP’s lawyer in its lawsuit against Shepard Fairey.

And in the meantime, we await the AP’s next move.

POSTED     Aug. 14, 2009, 12:35 p.m.
PART OF A SERIES     AP’s online strategy
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