Last week, the Associated Press started a loosing battle with the website Drudge Retort. The AP sent DMCA takedown notices telling the Drudge Retort to remove excerpts of AP stories they had posted on a blog. Their claim is that this violated the AP’s copyright and linking, not copying, was in the spirit of the web. As you can imagine there was a swift and strong reaction from the many blogs that routinely use snippets of AP articles when writing about politics and current events. After a few days of blustering, the AP relented and said they’d come up with new guidelines for excerpting, but that they still expected Drudge Retort to take the excerpts down.

The guidelines they came up with they took out of nowhere. Their fees range from $12.50 for 5 to 25 words up to $100 for more than 251 words. Furthermore, the AP says that if they later decided they don’t like the way you used the words that you bought a license for, they can retroactively remove the license and sue you for infringement even though you paid them. So that means that a popular website like Daily Kos would have to pay huge sums of money to stay in business. Let’s guess conservatively and say that they quote the AP 6 times per day and use about 100 words each time. At $25 for 100 words, that comes out to $150 per day just for using AP articles. That’s an additional $4500 per month in fees. Daily Kos would have trouble paying it and the thousands of smaller bloggers (like us) wouldn’t be able to afford it at all.

But consider how ridiculous the second part of the license is. If the AP decides that you’re tarnishing their image or using their story to make them look bad, they can take the license back without telling you and sue you for infringement (up to $300,000). So even if you pay, you’re not guaranteeing yourself safety from a lawsuit. This sounds like a ridiculous and abusive end user license agreement that comes with most software these days. Just like EULAs, unilateral and abusive licenses are illegal and routinely thrown out in court.

The most egregious problem, though, is that excerpts like this are covered by fair use. This isn’t even a grey area, this is open and shut, straightforward fair use. If this goes to court, no judge would rule in favor of the AP. In past cases on fair use, courts have looked at at few key characteristics of the use to determine whether it qualifies as fair use. One of the most important is whether or not it diminishes the value of the original content. If it doesn’t damage the original content producer (the AP in this case), then it is much more likely to be fair use. In this case, excerpting the AP and providing a link to the full story (as virtually all blogs do) actually serves to drive more traffic to the AP site, increasing the value of their content. I won’t go into the details of the other things judges look for, but suffice it to say that the AP pretty much doesn’t have a case and they’re simply trying to strong arm the smaller blogs into paying them.

So, I encourage all of you to make use of your fair use rights everyday, especially in the face of laws like the DMCA that seek to destroy our rights and let big companies write US law.

From the AP:

Corn prices climbed higher Tuesday, staying in record territory after the government said flooding had swallowed nearly 10 percent of corn crops in Iowa, the largest U.S. grower.
Other commodities traded mixed, with crude oil, silver and copper falling and wheat and soybeans moving higher.

This entry was posted on Tuesday, June 17th, 2008 at 11:40 pm and is filed under Culture, Politics. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.