Tue
Jun 17 2008
10:25 am

In the ongoing dispute between AP and the bloggers who quote them that prompted a blogger boycott of AP material, AP now says it will meet with the Media Bloggers Association to establish guidelines for "fair use" of AP content on blogs.

On the one hand, it's not up to AP to arbitrarily decide what they believe the law to be with regard to copyrights and fair use. On the other hand (being the Copyright Nazi that I am), a reasonable person might buy their argument that quoting one or two sentences that are the essence of the story is not fair use. How many people actually follow the link to read the whole article?

At any rate, trying to define "fair use" is tricky business. Copyright law doesn't specify how much of or for what specific purpose someone else's copyrighted material can be used. It offers only guidelines and a series of weighted tests to determine, on a case-by-case basis in federal court, whether it's fair use or infringement. It's sort of like the definition of pornography: you know it when you see it.

But, a core principle of fair use is that it's a bargain between the copyright holder, the government, and consumers of copyrighted material intended to protect the consumer and the free flow of ideas, not extend the already broad protections afforded the copyright holder. So in that sense it's not up to the copyright holder to dictate the meaning of fair use. It's up to them to prove infringement and damages.

Here's a quick analysis and here is a more detailed discussion with some case law examples. Here is the full Title 17 U.S. Copyright Law, and here is Section 107 on fair use.

Here are the four factors to be considered by the courts in determining fair use or infringement as set forth in U.S. Copyright Law:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

There's no real guidance or formula regarding how to weigh these factors, so lawyers and the courts have to go to case law, or absent that they wing it. This makes "fair use" cases more complicated than they need to be, and except in egregious cases the outcome is a roll of the dice. Here's some interesting commentary on the issue in the context of the current AP controversy.

So how can bloggers avoid trouble? I am not a lawyer, and this is not legal advice, but a little common sense goes a long way.

• Copying and pasting an entire article (or photo or video or recording) not created by you and saying "Hey look at this!" is clearly an infringement that fails all four of the above tests with the possible exception of the first (unless you have ads or a tip jar on your blog site), even if you provide a link to the original source.

• Copying and pasting the first paragraph or paragraphs from an "inverted pyramid" style news story in which the basic facts are set out in the lede could arguably be infringement if all the blogger does is say "hey, look at this!". It fails the second test, because the work is clearly copyrighted and produced by, for example, AP at their expense. It is licensed for a fee to their subscribers, so that fails the fourth test. AP can also argue that it fails the third test, because it is not "transformative" and the substantive facts of the article were copied, making it unnecessary to read the entire article to get the essentials (again failing the fourth test). The fact that it is used for criticism or comment as allowed by the fair use doctrine could be outweighed by these other tests.

• If the purpose is to criticize the reporting, excerpting the report and saying after each sentence "this is bogus reporting because…" would probably be legitimate "fair use." You can't criticize the reporting without quoting it. The point of your commentary is not to relay the news, but make new news about the news.

Anyway, there are a couple of ways to avoid problems:

• Just link to the source with a teaser that makes the reader want to follow the link and read the article. Follow that with your own commentary.

• Summarize and paraphrase with a link to the source ("AP is reporting that…"). Just make sure you say it in your own words and don't copy anything directly (consciously or subconsciously). Facts cannot be copyrighted, but keep in mind that changing one or two words of a copyrighted work is not paraphrasing and is considered plagiarism.

Note that in any case, simply linking to or attributing a source is not a defense for copyright infringement.

Press releases are generally fair game. After all, the point of the press release is to get some message out. Also, federal government reports, photos, etc. produced at taxpayer expense are generally considered "public domain" and also fair game.

Personally, I've been trying to be more sensitive to all of this, even before the latest AP controversy. Any rational blogger (is that an oxymoron?) knows we depend on the mainstream media to do most of the original reporting on stories we talk about. They have the staff, the infrastructure, and the resources to do it, whereas most blogs don't. On the other hand, bloggers drive a lot of traffic to media websites, so it's in everyone's best interest to work together in a non-confrontational way whenever possible.

And it works both ways. Mainstream media mines blogs for story ideas, and I'm sure many bloggers have seen stories based on their original "citizen journalism" reporting turn up in the media. I know I have, sometimes with credit and sometimes not. And bloggers (professional media bloggers and amateurs alike) sometimes seem to think anything on a blog is public domain. I've seen a lot of wholesale copying, sometimes of entire blog posts. Even if there's a link (which isn't always the case), the more you quote the less incentive a reader has to follow a link to the original source.

The bottom line is, everybody should respect everybody's copyrights, and everybody should give credit where credit is due.

274
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metulj's picture

So, "Heh, "Indeed," and

So, "Heh," "Indeed," and "We're winning" isn't enough?

True happiness is knowing you are a hypocrite. -- Ivor Cutler

Mello's picture

quoting quotes

Would you think that in any case the use of actual quotes taken from an AP or local story are fair game er use? You know, sometimes the story is only about quotes. (link...)

metulj's picture

In academia, if you quote a

In academia, if you quote a quote you say "Quoted by X in Y" and note the page number if you can. I don't think the AP needs to be suing people, but the wildly misrepresented sourcing on stories and wholesale lifting of text makes not only the AP seem unreliable (they generally are*) and bloggers unreliable as well.

*Until they mess with your pet issue, it seems...

True happiness is knowing you are a hypocrite. -- Ivor Cutler

talidapali's picture

AP is not known for ...

giving their authors fair credit for stories, either.

• If the purpose is to criticize the reporting, excerpting the report and saying after each sentence "this is bogus reporting because…" would probably be legitimate "fair use." You can't criticize the reporting without quoting it. The point of your commentary is not to relay the news, but make new news about the news.

The notion that quoting an AP article for the purposes of directly criticizing them is "fair use" is verboten in AP-world as well.

I think the AP is pretty much smoking their own ink and paper instead of using them to write with.

No AP articles were harmed in the composition of this comment.
_________________________________________________
"You can't fix stupid..." ~ Ron White"
"I never said I wasn't a brat..." ~ Talidapali

Pam Strickland's picture

Quoting Kos as accurately

Quoting Kos as accurately reporting what AP does and doesn't do seems illogical to me.

And I"m not sure exactly what you mean by the statement that AP is not known for giving authors fair credit. My first take was that you mean the people who write the AP stories, and that's just wrong. They are very good about giving both AP staff reporters and AP members' staff reporters byline credit. If that's not what you're talking about, please clue me in.

AP doesn't have advertisers to pay the bills. Their bills are paid by membership monies from newspapers, magazines, television networks and stations and radio networks and stations. If you work for a member organization and you use AP materials, even just a single quote, then you give AP credit for that quote. The same way you would give any source credit.

It's pretty simple really, basic common sense as Randy noted. Plus, basic attribution guidelines. The problem, I believe, is that too many bloggers aren't properly schooled in these things.

I'd like to hear J-PROF's take on this....

Pam Strickland

"We are what we pretend to be, so we must be careful about what we pretend to be." ~Kurt Vonnegut

Rachel's picture

And I"m not sure exactly

And I"m not sure exactly what you mean by the statement that AP is not known for giving authors fair credit.

I probably shouldn't speak for someone else, but I think what was meant was that AP aggregates news from their members w/o giving those individual members credit.

R. Neal's picture

They also pick up original

They also pick up original reporting stories from blogs and rewrite them without crediting the original source.

Pam Strickland's picture

Then that is wrong, and they

Then that is wrong, and they should be given hell for it.

As for what Rachel said, I'm not in the daily, or even weekly, news business these days, but I've never known them not to give credit to members for original reporting.

Pam Strickland

"We are what we pretend to be, so we must be careful about what we pretend to be." ~Kurt Vonnegut

Rachel's picture

As for what Rachel said, I'm

As for what Rachel said, I'm not in the daily, or even weekly, news business these days, but I've never known them not to give credit to members for original reporting.

I could be wrong. I've read this on several blogs about the issue - which I would credit, but I can't remember which they are :).

gonzone's picture

Who Decides

The AP doesn't get to decide what constitutes fair use and what doesn't.

Simple, eh?

Nothing to discuss with those asshats.

"When the going gets weird, the weird turn pro."
Hunter S. Thompson

Pam Strickland's picture

I'll give you that they

I'll give you that they don't decide what's fair use. However, they do produce the information as a profit making venture. I do believe that the least that those wanting to refer to the AP work can do is hear them out. You never know what good might come out of the conversations. It's certainly better than lawsuits.

Pam Strickland

"We are what we pretend to be, so we must be careful about what we pretend to be." ~Kurt Vonnegut

Michael's picture

Negotiations

Well, you'll be happy to know that AP is negotiations with the Media Bloggers Association.

What? What do you mean? You've never heard of them?
~m.

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