Below The Beltway

Not surprisingly, there’s been a lot of discussion among bloggers about moves by the Associated Press to define what constitutes “fair use” of it’s articles by bloggers:

The Associated Press, one of the nation’s largest news organizations, said that it will, for the first time, attempt to define clear standards as to how much of its articles and broadcasts bloggers and Web sites can excerpt without infringing on The A.P.’s copyright.

The A.P.’s effort to impose some guidelines on the free-wheeling blogosphere, where extensive quoting and even copying of entire news articles is common, may offer a prominent definition of the important but vague doctrine of “fair use,” which holds that copyright owners cannot ban others from using small bits of their works under some circumstances. For example, a book reviewer is allowed to quote passages from the work without permission from the publisher.

Fair use has become an essential concept to many bloggers, who often quote portions of articles before discussing them. The A.P., a cooperative owned by 1,500 daily newspapers, including The New York Times, provides written articles and broadcast material to thousands of news organizations and Web sites that pay to use them.

Last week, The A.P. took an unusually strict position against quotation of its work, sending a letter to the Drudge Retort asking it to remove seven items that contained quotations from A.P. articles ranging from 39 to 79 words.

On Saturday, The A.P. retreated. Jim Kennedy, vice president and strategy director of The A.P., said in an interview that the news organization had decided that its letter to the Drudge Retort was “heavy-handed” and that The A.P. was going to rethink its policies toward bloggers.

James Joyner is among those who is not only not outraged, but somewhat surprised that it took this long:

While most of my blogging brethren are outraged at this and there is an organized effort to boycott AP content on blogs, I’m actually surprised that this action is so late in coming. I’ve worried for years that the lengthy excerpts I use on OTB could be ruled to exceed “fair use” but relied on the notion that I was adding enough commentary to create a transformative work.

And, as Joyner notes, bloggers often complain of the same thing that the AP is trying to combat:

[B]loggers like myself are frustrated over the scourge of scraper blogs which republish our content automatically in order to generate revenue. Those sites often wind up higher ranked in the search engines than the original content and thus cheat us out of ad impressions and thus income.

From that perspective, the AP’s desire to protect it’s copyrights, and, more importantly, its investment in a significant worldwide reporting network, is understandable. The problem, I think, comes in trying to set hard-and-fast word-count rules like the AP tried to do with the Drudge Retort, a problem that several other bloggers have noted in commenting on this story.

Ann Althouse, for example, that some of the best blogging involves quoting significant portions of news and opinion articles and commenting on them:

I agree that bloggers shouldn’t just cut and paste most of an article when all you are doing is pointing to an article or creating a place for people to comment on it, but quoting is extremely important. Much good blogging involves going through a text line by line and critiquing the precise wording.

This is known in some circles as Fisking (one excellent example can be found here and one of my own early attempts at the art of fisking is something I’m still quite proud of) and it’s one of the things that’s unique to blogging. Even today, with blogging at least five years old, you don’t see stuff like that coming from the mainstream media; of course, given the fact that the MSM is usually the target of fisking, that’s understandable.

What’s relevant about fisking though, is the fact that, sometimes, reproducing in whole significant portions of someone else’s work is not only helpful, but necessary in creating a new work and making a point. If the AP, or any other entity, is going to start drawing bright-line rules that mute speech like that, then I think we’re going to have a problem.

Another point worth mentioning, which McQ touches on in his post about this issue at QandO, is the fact that most good bloggers don’t just blockquote articles for the fun of it, we also link to the original article. To some extent, that probably drives additional traffic to the original site, which increases ad impressions and revenue for the. Additionally, the quote-and-link ethic that bloggers tend to follow is, I think, a reflection of the fact that the networked generation, which includes, I think, most bloggers, tends to demand support for an argument, whether it’s about economics, or the identity of the final five Cylons on Battlestar Galactica. A blog that doesn’t provide links to original sources isn’t going to be taken seriously.

There is a final question raised by the story, though, and that is whether the Associated Press, or any other news organization really is the final arbiter in determining what “fair use” actually is. In the end, I think, the answer is no.

Fair use is a legal doctrine that has been developed by the courts in an effort to balance the competing interests of copyright law with the desire to encourage continued innovation and, most importantly, the rights protected by the First Amendment.

In the end, it is the courts, and not the Associated Press or any other media outlet that is, and should be the final arbiter of what constitutes “fair use” by bloggers.

But, of course, that’s the law-school version of the story.

The real story is this.

If the Associated Press, The New York Times, or The Washington Post decided that they wanted to crack down on bloggers who made extensive use of their content, then I think it would end up being a blogospheric version of the RIAA’s moves against people who download music illegally (and let’s all be honest, if you download an entire CD that you didn’t pay for, you’re breaking the law).

But there would be a big difference.

Instead of suing a bunch of college kids who don’t want to pay 15 bucks for the latest Coldplay CD, they’d be suing the later-day heirs of Patrick Henry and the revolutionary pamphleteers.

I wouldn’t want to be representing the AP in that case.