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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.

                                   
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Mark Coddington    Aug. 22, 2014
Plus: Controversy at Time Inc., more plagiarism allegations, and the rest of the week’s journalism and tech news.
  • http://abriefhistory.org Bradley J. Fikes

    “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.”

    “Seemed to tell”?

    In the interest of transparency, I have a few questions:

    Isn’t Curley the best source for what Curley said?

    Has Curley said the NYT article was inaccurate? With specific examples?

    Have you every spoken to Curley about the article? Have you even tried?

    And if AP is refusing to make Curley available, why don’t you say so?

    Did you get the document with any help from or the knowledge of any AP executives?

    If so, did anyone from AP impose conditions on your release of the document or the terms under which they would talk to you, or what your articles would contain?

    If so, what were the terms?

  • Dave Barnes

    None of this matters.

    If any organization makes it difficult to obtain info, then I will go elsewhere.

    If ALL news organizations make it difficult to obtain news, then I will spend less time on the InnerTubes® and more time reading books. In other words, I will just stop paying attention to the news.

    I say this and I am a news junkie. If I am willing to give up news, then what does that say about the average surfer?

    If no one reads this difficult to obtain news, then these organizations will go out of business.

  • Zachary M. Seward

    To answer Bradley’s questions:

    > Isn’t Curley the best source for what Curley said?

    Yes, but it was a paraphrase.

    > Has Curley said the NYT article was inaccurate? With specific examples?

    No.

    > Have you every spoken to Curley about the article? Have you even tried?

    No, I have not spoken to him, but yes, I have been trying since the Times article was published.

    > And if AP is refusing to make Curley available, why don’t you say so?

    I’ve made it clear that the AP stopped answering questions about its copyright stance and have expressed my frustration with that decision.

    > Did you get the document with any help from or the knowledge of any AP executives?

    No.

    > If so, did anyone from AP impose conditions on your release of the document or the terms under which they would talk to you, or what your articles would contain?

    No.

  • John sewell

    Brad,
    You spend an inordinate amount of time trolling this blog and others, and then telling Zachary and the CJR blogger what questions to ask. How about if you got off your larda— and asked Curley et al yourself? Or are you too busy rewriting press releases for your venture-capital blog?

  • http://abriefhistory.org Bradley J. Fikes

    Zachary,

    Thank you for the answers. However, calling Curley’s statements in the NYT article’s a paraphrase begs the question: Was the paraphrase accurate? If it was inaccurate, presumably, Curley would want to correct it.

    Of course, if the paraphrase was accurate, Curley would understandably be reluctant to challenge it directly. He’d be putting his credibility against that of the New York Times reporter.

    “John sewell”,
    I don’t even know who you are, or why asking these reporters to get to the source of all this controversy is “trolling.” But whatever grudge you have against me (I don’t even know who you are), nice job flacking for AP.

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  • William Dodder

    Mr Seward your “journalism” sucks.. The AP tried to sue All Headline News claiming it the complaint that the defendant’s journalistic attribution to AP violated the AP’s trademarks.. So in fact the AP sued BECAUSE they even properly and ethically credited…. Your characterization that they were not shows that you have failed to do your own even basic research and fact checking.. If you had you would have obviously gotten this basic fact straight.

  • Brandon

    I can’t believe you gave Baio linkage. Lame…respect = <

  • Brandon

    ok waxy is cool, but the ap links r childlike…

  • Zachary M. Seward

    William, I’m looking into it, but can you provide more information? I based that statement on Wired’s report, and the AP’s original complaint in the case said that proper credit wasn’t given. The AP’s name and logo were also used in some capacity on the site, which appears to be the root of the trademark claim. And here‘s what AHN admitted in the settlement. If you know more, please let me know. Just want to be accurate. —Zach

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  • William Dodder

    I think that you should have taken the time to actually read all the complaints, and responses in this case. Just because the AP alleges it doesn’t make it true or even factual.

    The judge in the case tossed the unfair competition and trademark claims as “lacked factual support”. Read his rulings on the motions.

    http://www.citmedialaw.org/threats/associated-press-v-all-headline-news

    Your sophomoric parroting of a baseless allegation, that was in fact dismissed as baseless and lacking factual merit is simply and completely horrendous. You didn’t even do basic research or fact checking.

    Before you print something that could be defaming you owe it to your reputation and Harvard’s to complete some basic fact checking.

    Also… Isn’t it ironic that you are basing your wiring on wired’s article (which may or may not be factual) and doing what AP alleged that All Headline News did.

    I, for one, am a IP law student that actually very closely followed the AP vs All Headline News suit and I don’t think that AP would have been able to win the hot news claim (What this suit was really about) and the copyright claim was anyone’s guess. What this case really smelled like was a much larger competitor trying to sue a newer and smaller competitor out of existence.

    I think that the parties in this case made a business decision to settle.. Which is a shame..

  • Media Dispundit

    The issue is really more about profits and money than it is of fair use and copyright.

    It is no secret that AP and old school media totally got it wrong when it came to the web. Many in paleo-media viewed the web as nothing more than a fad…

    Old world media (this includes the AP) got left behind and entire new business models passed them by and now they are no longer the gatekeepers.

    However I believe that the AP has been acting badly… They’ve filed lawsuits. sent outrageous DMCA and legal demands etc. From what I read on the DMCA and the actual posts in question I would argue that they fall squarely in the realm of fair use.

    What this looks more and more like is that the AP considers that they are entitled to “Own the news”, Not just the expression of the news but the “facts of the day” or as AP’s chief strategist called it “conversation of the day” as well. This is confirmed by your conversation with Srinandan Kasi.. because it seems to me the moment you start monetizing then the Associated Press will want their cut.

    What it looks and smells like to me is that the AP is trying to strong arm and coerce bloggers, the aggregators and online news into accepting terms that no court would ever grant them. The AP is probably willing to bet that not too many people have the resources to mount what would be an expensive fight.

    In the end.. it’s all about the money…dontcha know.

    Maybe we should turn the tables and require the AP and its members to compensate everyone else when they take content.

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  • James R. Bettencroft III

    What amazes me is that this IP battle rages on even as the quality of the AP’s news report continues on its steady path toward decline. Where are all the prestigous awards AP used to rack up on a yearly basis? They haven’t won much of anything over the last few years. Could there be a silent revolution in the works whereby AP’s tyranizing leadership gets ousted in the very near future? Let’s face it — stuffing “Joe the blogger” in a trash can is quite easily accomplished when you are the high and mighty AP but stepping on the NYT’s and other members toes generally doesn’t go over well within the ranks of AP’s dues paying clientele (and those dues aint cheap – let me tell ya… ). This cantankerous IP debate would have served the industry well had it been discussed and implemented five years ago but seeing as the news industry suffers terribly from a lack of substantial leadership right now it comes across as being rather self serving on AP’s part. And it also comes at the worst time… a time when the entire industry could use a good dose medicine not a shot of sanitized and contemptuous legal bickering.

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