Digital Journal file photo

You will have read The New York Times piece about AP’s intention to set guidelines on blogs, etc. and the Fair Use issue. The Fair Use concept is very broad. The US Copyright Office page on Fair Use is a good guide to the issues. It says, among other things:

…Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

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

2. the nature of the copyrighted work;

3. 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 distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

This clause is an out, basically meaning that there’s no way of quantifying the definition of “Fair Use” as a number. Which is correct. If you use Mickey Mouse’s head as your logo, it’s an obvious infringement. If you call yourself Coca Cola, it’s an infringement. That, incidentally, is also the letter of the law, because infringements are hard to pin down generically, and it's better not to write a law that can create problems by creating unworkable definitions. But- “..criticism, comment, news reporting, teaching, scholarship, and research” have a few ramifications, not least of which is the idea of “public domain”. In the news sphere, after you’ve published something, it’s considered in the public domain. So it’s fair to be able to refer to what you’re talking about, specifically, which means, let’s face it, quotes. Digital Journal is a case in point. We do something which by rights would qualify as “More Than Fair Use.” We not only acknowledge, we also provide direct links to sources, many of whom use AP as their sources. That’s a bit better than many mainstream news sites, which refer to AP, Reuters, and others as “agencies”. (Which is also outside AP’s guidelines, from memory.) In the sense that a matter or topic is news, we have a right to consider the topic in the public domain. What else would you call it? It’s not a secret. A thing which is public knowledge isn’t copyright, as a subject. We also don’t hide our sources, if anything, we generate hits for sources, which is a direct, verifiable, benefit to their advertising revenue. See any “damage” to a copyright owner, so far? Because that’s the legal issue. Quaintly, any legal action is supposed to achieve something. AP would have a hard time proving any damage being done to its interests by some blog somewhere in cyberspace. There’s also a truly dangerous element of naiveté in AP’s approach. Copyright in news articles can be circumvented by paraphrase. It is perfectly possible to read any article and simply rewrite it out of copyright control. Like the Maginot Line, it would be very easy to get around. It would be a static position, no maneuvering power to adapt. If AP sets up an imposition which creates too many restrictions, everybody will simply go around it. Worse, it could tie itself to a legal position which may not be able to deal with the inevitable loopholes. Rewrites are an industry on the net, I’ve done a lot, myself, wading through the mountains of filler and miraculously producing something quite different on the same subject. Anybody could just put an ad on Elance or Online Writing Jobs and get thousands of rewriters in a day or so. Unless AP wants to have to fight for every paragraph on every release by anyone with a computer and time on their hands, that’s a real possibility. It’s not hard, you’d have people doing Rewriting Training Course franchises in a year. There’s a further problem: AP could set itself up as one of those damn Causes, “Fight The Power”, the enemy of the little guys, as symbol of oppression, etc. That perception, idiotic as it usually is, could lead to real grief, a la Microsoft’s constant hacking problems, First Amendment issues, you name it. The whole thing is more trouble than it’s worth. Nobody wants, or has any reason, to do AP any damage, literal or theoretical, as far as news sites, or better quality blogs, are concerned. It’s a good source, it’s reliable, it’s unbiased, and it doesn’t produce fluff. That tends to put us on their side, in terms of Fair Use. Not much damage seems to be being done to AP, either, so the value of a legal position has to be questioned, at least. Guidelines aren’t unreasonable, in theory. AP standards are generally pretty high, and there is a valid point to be made where “reproduction” is involved, rather than commentary, etc, as per Fair Use. From the New York Times piece:

Still, Mr. Kennedy (vice president and strategy director of The A.P.) said that the organization has not withdrawn its request that Drudge Retort remove the seven items. And he said that he still believes that it is more appropriate for blogs to use short summaries of A.P. articles rather than direct quotations, even short ones.

“Cutting and pasting a lot of content into a blog is not what we want to see,” he said. “It is more consistent with the spirit of the Internet to link to content so people can read the whole thing in context.”

Context is another valid point, and relevant to Fair Use. Some usage of quotes is more like abuse than Fair Use. Excuse the pun, but in context with the whole concept of Fair Use, AP is right, but in practice, the idea has spun every way but the right way, so far.