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Posted by on Jun 16, 2008 in Media | 1 comment

More on the AP’s ‘Fair Use’ Flap: Who Gets to Set the Guidelines?

Jim Windish has been covering this story as it evolved, but I thought I’d jump into the discussion, as it is an issue that concerns me greatly. I’m always uneasy when I color outside the lines — and even more so when I don’t know where the lines lie. So one part of me is glad that we’re finally having this discussion. The other part of me is asking why the AP gets to make the call.

As Steven Benen notes, ‘The AP is one of the most commonly linked tonews outlets on the planet. If bloggers can’t excerpt 79 words from an article, it’s going to have an effect.’  The thing is, once a practice becomes accepted and entrenched within a community, the members assume that it’s all right.  I understand the AP’s concern but I think they made a big mistake in waiting till the standards were well and truly entrenched and a bigger one in trying to dictate what those standards should be. Community standards aren’t the law, but an AP fiat isn’t either. . 

Anyway….talk about reaping the whirlwind.

As I said, I do understand that there are lines that a responsible commentator shouldn’t cross. But where are they? At Outside the Beltway, James Joyner expresses the same unease I’ve occasionally felt when quoting extensively from a piece that someone else has written.  ‘I’m actually surprised that this action is so late in coming. I’ve worried for years that the lengthy excerpts I use…could be ruled to exceed “fair use” but relied on the notion that I was adding enough commentary to create a transformative work.’  So I tell myself, but there are times when I worry whether my own commentary is sufficiently transformative to justify the extent of my excerpts.

In other words, I recognize that news services who provide content free of charge have an interest in ensuring that the reproduction of their content by bloggers isn’t peeling off their readers. Joyner writes:

[B]log posts…that build from content created by the AP, NYT, WaPo, and others will wind up ranked higher in Google than the original content. This is due to the inter-linking that blogs do, the nature of permalinks, and a variety of factors….  If someone looking for information on the latest breaking news winds up at a blog that’s excerpting AP content rather than on a site displaying advertising that the AP is getting paid for, we’re costing them money. (OTB)

For those of us who worry getting on the wrong side of the ‘fair use’ line, but who like for readers to have the specific content on which their commentary relies right at hand, the lack of reliable guidance is a problem.  When seeking guidance, I’ve yet to find two people who agree about what is, or is not, fair use.  The Associated Press clearly doesn’t know or we wouldn’t have had all this back and forthing or all this talk of setting guidelines.

And there is an other hand.  The internet is one ginormous stream of content, including news content.  One thing that bloggers do for their readers — possibly the main reason some people read blogs — is to dig around among the slag and rubble for the gold.  But for bloggers who link to — and quote from — a story, many readers would never bother looking for it or ever find it. 

Jeff Jarvis  doesn’t see why the AP gets to make up the rules. 

[T]hey don’t want us to quote their stories but to summarize them. That, you see, is the AP way: the mill. That is not our way: the ethic of the quote and link. The AP is still trying to preserve its way. But, as I often say, protection is no strategy for the future. In the story -which, note, I’m only summarizing here, without the quotes from the AP that might better state its stance (ahem) – the agency comes off like a policy ping-pong game, going back and forth: We want to threaten but not to sue, we want to be reasonable but we’re still going to demand that Cadenhead take down excerpts, we don’t know what the hell to do. Maybe back off, AP. Because we won’t.(BuzzMachine)

Jarvis’s suggested guidelines are here.      

Bloggers should not quote excessively from others’ content and when they quote it should be for a reason — to agree, disagree, comment on, recommend, correct (there can be many reasons). This is fair use and fair comment. There can be no word-count limit because it depends on the use. If I want to fisk a story, I may well quote the whole thing
because I am commenting on it all. The test is reasonableness: a fuzzy test, but life is fuzzy. 

The AP, for its part, should recognize that they and their members now live in a new media ecology constructed of links, one they do not and cannot control any longer. To be good citizens in this new economy, the AP should respect the rights of readers who write and recognize the benefits of receiving links and credit, as the bloggers give it. They should further extend this ethic to their own work. And if there is conflict or questions, their reflex should not be to send their lawyers to write letters. Remember that you are dealing with individuals, not corporations.  (BuzzMachine)

I note that Jim Kennedy (the Vice President and Director of Strategy for AP) seems to have commented on this post as follows. ‘As a result of this particular case with the blog, we are going to work with the Media Bloggers Association to see if we can establish some guidelines for referencing and linking that satisfy all needs and concerns. So, more to come, on a positive track we all hope.’ 

At OTB Joyner suggests that it might be in the interest of bloggers as well as the media organizations for those concerned — he recommends that the Media Bloggers Association and various news sources (not just the AP)  ought to come together to hammer out acceptable guidelines rather than to wait for the issue to be resolved by Congress or the courts. 

Such guidelines would not, of course, have the status of law or protect bloggers from media organizations that didn’t participate or ratify the guidelines.  They might be the basis of a defense based on industry standards/ordinary practice in the community.  But ‘fair use’ is still, at the end of the day, for the courts to decide.

My own thought is that the AP should just come to terms with things-as-they’ve-evolved and show more appreciation for bloggers who point readers to their stories.  I wouldn’t mind having a better sense of where the media organizations think the lines should lie — I want to be courteous to the providers of content — but they don’t have any more standing than I do to limit word counts.  As Jarvis says, that’s ridiculous.  It’s not about the number of words quoted, but the use made of the quote. I assume that they wouldn’t make word count the guideline for use of its materials. It seems to me that the standard is necessarily vague and that it must remain vague to be workable. As Jarvis says, ‘life is fuzzy.’

But we’ll see.

In the meantime, for those who worry about the right — as in ‘legal’ — guidelines,  James Windish at The Moderate Voice recommends this resource for bloggers who want to understand ‘fair use’ and this fair use fairy tale.   

CROSS-POSTED (with minor modifications) at Buck Naked Politics