Intellectual Property Law

My Two Cents on the AP's Blog Policy Fiasco

By Cynthia Brumfield

(Back from the almost-dead...big household move completed. Chief lesson learned: most of the stuff we own we don't need. Very liberating.)

After going off-grid for days, I came back to find learn about the firestorm created by the Associated Press after it sent a take-down request to the Drudge Retort demanding that the blog take down seven items that contained quotations from A.P. articles ranging from 39 words to 79 words. Following a scorching blast by the blogosphere and after legal experts said that the A.P. really can't bar reasonable excerpts under U.S. copyright law's fair use doctrine, the A.P. conceded its news policy was "heavy-handed" but didn't back down from its demands.

A.P. may or may not be relying on an obscure legal doctrine known as the "hot news" misappropriation to limit the fair use rights of Drudge and other bloggers. The "hot news" exception does limit excerpts or summaries of timely material by direct competitors although use of the hot news claim has apparently fallen out of favor.

The A.P. now says it wants to establish a dialog with bloggers to come up with guidelines instead of the ham-fisted cease-and-desist approach. But, the 1,500-member news organization does seem to be sticking to the idea that even very short article excerpts can violate A.P.'s copyright because "the essence of an article can be encapsulated in very few words." In other words, A.P. is claiming it owns the hot news it reports.

It's inconceivable that A.P. would ever prevail in a court of law were it to bring an infringement suit against any blogger who reproduced a short excerpt that concisely conveyed the news. Nor does the A.P. want to actually sue bloggers. According to A.P. executive Jim Kennedy, ?We are not trying to sue bloggers...That would be the rough equivalent of suing grandma and the kids for stealing music. That is not what we are trying to do.?

What, then, is the A.P. trying to do? Why create this much negative press and organizational shame if the point isn't to hold a legal sword over bloggers' heads?

It's hard to say, but I suspect that some bean counting executive at A.P. thought that this gambit was a good way to shore up flagging revenues. The A.P., you see, has a preexisting license fee plan that charges per number of words for article excerpts, starting at $12.50 for 5 to 25 words. Someone at A.P. (and perhaps not so shockingly, someone high up the food chain, no doubt) may have got sick and tired of this pay-for-excerpt business plan generating little or no revenue and so...instructed the attorneys to start putting some teeth into what A.P. considers its copyright enforcement.

That's just a guess. Who knows how such a stupid decision got made. A.P. doesn't plan to sue bloggers and I doubt if anybody will pay the A.P. for excerpts. So, the news organizations comes out of this whole episode looking pretty stupid.

If there is good to come out of this brouhaha, it's hard to see what that would be. It's not like some new concept will evolve from this mess. Fair use law is pretty well established, although controversial in the eyes of some (read: Hollywood). No one is going to see things A.P.'s way and no other news organization will make the same mistake of issuing take-down notices for excerpts.

Full post as published by IP Democracy on June 17, 2008 (boomark / email).