Copyright bullies

Saturday, June 14, 2008, 2:34 AM
Thoughts by John

Sometimes you wonder if members of the old economy even remotely get what has happened to the world while they were off pretending the end is not near.

Case in point: the AP has apparently developed a fetish for issuing DMCA takedown notices to some blogs for citing portions of AP articles and linking back to the originating articles. The longest citation was, get this, 79 words. In essence, the AP is conducting a frontal assault on fair use and fair comment, because it is too stupid to understand that an ethically correct backlink with a limited citation is a net gain for the AP.

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Ponder that for a second.

What the AP is actually citing is a variant of "hot news misappropriation". This is a branch of unfair competition law, not copyright law. The problem with citing hot news misappropriation is that isn't all that rough of a law. Basically, if you're not outright free-riding on someone else's efforts, you're in the clear!! For example, Motorola successfully defended itself against a misappropriation claim in 1997 for retransmitting key details of NBA games.

The other half of this equation is the fair use and fair comment doctrines of copyright law. Fair use basically says you have the right to reproduce a limited portion of a copyrighted work for expository purposes within a derivative work. So, for example, if I am writing about Abraham Lincoln, I have the right to cite, within reasonable lengths, books about Abe Lincoln. If I am discussing the war in Iraq, I have the right to cite AP articles about the war.

Fair comment is actually a bit stronger for the accused. Fair comment says that when you are discussing a particular matter, you have the right to cite fairly significant portion of a copyrighted work in order to illustrate a point you are commenting about.

Now, both fair use and fair comment are meant to be 100% compatible with fair trade practices. You can't quote 198 pages of a 200 page book and claim you're just illustrating a point in fair comment. Although, it should be noted that the shorter a work is, the greater the percentage you are allowed to cite. For example, you can cite all of a piece of ad copy. Nike couldn't sue you for saying that quoting "Just do it" is cribbing 100% of its copyrighted work.

I get why the RIAA, the music industry stooges, can't get the point. The music industry is the legitimate front of an outright criminal racket, largely operated by elements of the Italian-American mafia. It would be out of character for guys like Tommy Matola to "get it".

But, you might think folks who regularly sue government and corporations to open up information would be a little more receptive to the general idea of expanding public discourse.

Apparently not.

News outlets are already losing their taste for dealing with the AP, as demonstrated by the fact that the eight largest newspapers in Ohio have started their own news sharing service that provides, surprise, ethical attribution and backlinking where possible.

The AP is starting to stink a lot like RIAA, isn't it?

I get the notion that the AP may be fighting for its very existence. News, especially the newspaper business, is increasingly diluted by the internet. Newspapers themselves have a much stronger incentive to drop the AP altogether and simply report local news. A lot of papers don't, because they don't have a real business plan for selling ads on fewer pages.

Of course, local advertisers are, themselves, too dumb to catch on that they're being had by folks with decreasing readership. You'd be horrified to discover how many newspapers are including their weekly freebie rags' circulation in with the regular circulation to generate a circulation figure that is often inflated by more than 100%.

These folks are shoveling a lot of bullshit in order to make ends meet. And if you think for a second they won't do something desperate and stupid to keep those ends meeting, you'll be unpleasantly surprised.

Of course, they could modernize. But, why bother doing that, when you can just keep reprinting vanilla crap from the AP wire.

Newspaper folks are dreadful bunch. Especially at newspapers that are more than 50% AP copy. It turns out, people need proximity to their subject in order to have enthusiasm.

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Thank you,
John Crawford
Pro Content and Design