The Associated Press, Fair Use, and Counting with Cookie Monster

On reading about the dispute between the Associated Press and the Drudge Retort, I wondered immediately if AP had hired the Count from Sesame Street, and whether Cookie Monster blogs.

Copyright fights with bloggers are nothing new. Heck, they even show up in divorce proceedings occasionally. But this looks like serious overreaching by AP, for three reasons.

First, AP’s copyright in its stories is thin. News reporting is primarily factual, and facts aren’t protected under copyright. Moreover, some of the creative expression surrounding those facts is probably excluded from copyright by the merger doctrine – there are only so many ways to say “A news discussion site and The Associated Press have resolved a dispute,” and copyright law prevents a content owner from locking one of them up via merger. (To be more precise, when there are only a few ways of expressing an idea, those limited means of expression “merge” with the idea and become unprotectible.) So, while AP is likely protected against large-scale reproduction of its stories, judicious quoting is almost certainly fine – not because it isn’t infringement, but because AP has no intellectual property to protect at that scale.

Second, sites that do more than just reproduce parts of stories – that add some commentary or analysis – almost certainly have a great fair use defense. Fair use, codified at Section 107 of the Copyright Act, takes (at least) four factors into account: the purpose and character of the use, the nature of the work being copied or used, the amount and substantiality of the portion used, and the effects of that use on the potential market or value of the work. To take them in order:

  1. the purpose and character of the use is transformative, if the copied portion is employed for criticism or comment, so that weighs for fair use;
  2. the work being copied is primarily factual (see above), meaning it gets less protection, which also cuts for fair use;
  3. the amount and substantiality depends, but Drudge Retort used excerpts of roughly 30-80 words out of longer stories, and the permissible amount likely increases as the “thickness” of the copyright in Factor 2 decreases;
  4. and the effect of the use on the market is likely nil – if not positive (linking sends users to AP stories to get the full piece, which drives ad revenue). The excerpts certainly don’t substitute for the full story. AP can’t prevail on this factor simply by offering to license small bits of its stories – if so, one could defeat a fair use claim merely by offering to license the challenged use. Furthermore, the AP restrictions in its licenses – which limit critical use of the material – should be considered under this factor, along the lines of Wendy Gordon’s “market failure” approach (viz: is AP likely to license criticism of its writing / stories / reporting?) This one goes for fair use also.

So, even if the bloggers take a bit more than is necessary under Factor 3, I think the other 3 generally cut for them. Thus, even if there’s enough copying of protected material to generate prima facie infringement, fair use probably kicks in to immunize bloggers.

Finally, AP’s “hot news” claim is indefensibly weak. The “hot news” misappropriation doctrine comes from one of those hoary old Supreme Court cases (INS v. AP) that IP professors feel mildly embarrassed to teach, since the result is so plainly goofy. (If the AP’s stories weren’t protectible under copyright, why exactly did AP win, again? And didn’t Feist kill off “sweat of the brow” protection for this type of work?) Hot news has largely languished, though the NBA did try to squash Motorola’s score update paging service with it (unsuccessfully). Given the competition in news reporting, and the plethora of information sources on the Net, it’s unlikely AP could even make out a hot news claim. (If the Second Circuit has the elements of a misappropriation claim right, then AP seems to fail at least on factor 4, “the defendant is in direct competition with a product or service offered by the plaintiffs,” and 5, “the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.” Bloggers don’t compete directly with AP, and blog quotations – even if large-scale – hardly threaten the collective’s existence. (Law geeks: the 5-part test is at Nat’l Basketball Ass’n v. Motorola, 105 F.3d 841, 852 (2d Cir. 1997).)

Both fair use and hot news are murky areas of the law. That’s what makes threats of lawsuits based on copyright and hot news so effective, especially when the target is a blogger with limited resources to pay for legal counsel. Fortunately, AP is going to help us figure out what’s legal:

the AP said it was working to develop guidelines for what it considered permissible use of its content by bloggers… AP has said it had no intention of trying to define a legal standard, and will seek to protect AP content without discouraging bloggers from legitimately quoting from it… AP spokesman Paul Colford declined to elaborate on the news cooperative’s statement.

So, what will trigger a DMCA takedown from the AP, or a lawsuit? It’s not clear, but bloggers are pointing to AP licenses that demand a payment for the Web use of more than four words from one of their stories. (Apparently, you also can’t use the excerpt to criticize the AP, or the author.) Hmmm. 5 words or more. OK, just from the story I cited above, how about “conflict,” “comment,” “discouraging,” “closed,” and “acceptable”? Do I have to pay up? And why do I feel like Albus Dumbledore?

A friend who’s an IP lawyer pointed out that AP can ask for any license they like – it’s really more like copyright insurance than a definition of fair use. This is true, but it’s a little off-target. I can demand that you pay the “Bambauer license” every time you shout “Yankees suck!”, but I don’t have a legal right to do so. The point is that copyright is unclear, and fair use is a defense: even if a blogger were to win a lawsuit, it could be costly. Overarching demands can have a chilling effect.

Astonishingly, some bloggers – even law bloggers – are following the “no more than four words” rule. I couldn’t disagree with this approach more strongly. It invites more bad behavior, and it dignifies an obnoxious practice by paying attention to it. The quoted text above is from an AP story, and it’s more than four words. I don’t think AP would bother with a takedown notice or a suit, but if they did, they’d be beaten in court like a dusty rug in springtime. And that’s the attitude I hope more bloggers will take: if you’re adding value to what you borrow, if you’re quoting judiciously, then AP’s ability to threaten you is very weak.

5 Responses to “The Associated Press, Fair Use, and Counting with Cookie Monster”

  1. Incredibly, I find that Associated Press signed an agreement in 2007 with NowPublic.Com to use material FROM NowPublic.

    NowPublic defines itself as a “social networking” site, as does the Drudge Retort.

    “Contributors” to NowPublic copy material directly from copyrighted publications and post the material to the NowPublic site with a link to original source. I’ve reviewed a number of these contributions. The pasted items are quite lengthy.

    Take a look at this paste-job, copied from the New York Times.

    This is a practice that’s more-than-identical to what the Drudge Retort was challenged for, because the NowPublic paste jobs are much, much, much longer.

  2. While I think it is likely that AP would be beaten in court like a dusty rag, as you said, the real danger is the cost to defend against such actions. I certainly don’t think it too out of the realm of possibility that a district court could get the issue entirely bollocksed up, and the poor sap blogger ends up having to take the case to the relevant court of appeals. Not cheap.

    Luckily, in such a high profile case, there are organizations with lawyers who would love to take the AP on. However, I have to wonder about the run of the mill, every day cases…

    After I get through with this annoyance that is studying for the bar exam, and all that goes with it, I’d love the opportunity to work on cases like this. Now that would be fun.

  3. Dynamite post, Derek, and one I’m largely in agreement with (as we’ve discussed elsewhere). I think you’re right to emphasize that, at the end of the day, AP has almost nothing here that is protectable — it doesn’t own facts, and it doesn’t own expressions that are closely tied to the conveyance of those facts under the merger doctrine and/or scènes-à-faire. So, what’s left? Some sort of mutant “selection and arrangement” compilation claim? (Ethan Ackerman doesn’t think so). “Hot news”? I think you do a pretty good job showing why that won’t fly.

    Having said all that, Chris’s comment is dead on. If this turns into a fight over “is this fair use?” rather than “is what AP wants to protect actually protected?”, then the really important battle has already been lost. Fair use is unknowable ex ante and the impact of sheer judicial perversity on doctrine is alarmingly high. (Who would have ever been able to predict beforehand that 2 Live Crew would win or that The Nation would lose on fair use?)

    Lessig famously wrote that “fair use in America simply means the right to hire a lawyer to defend your right to create.” I can’t fault the reasoning of those bloggers who have concluded that the least costly course is just to stay away from AP material rather than incurring the potential expenses of litigation, even though you and I agree that they ought to win in a walk.

    What’s the Stanford Fair Use Project doing with the AP situation, I wonder?

  4. Bill, you’re absolutely right. I did a quick check on the article you link to. The NowPublic excerpt is 302 words (the first one) out of an article of 1163 words. Copying over 25% of the article is a lot. In reading the AP press release, I think AP has two hopes for the agreement. One, they want to seem cool and into crowdsourcing (like CNN’s obnoxious “iReporter” bit). Two, they want to have access to material before it makes its way into other MSM channels. Clearly they want to stay way, way away from copy-paste jobs. At least, I assume they do.

    Chris, Tim, I’m exactly with you. This is why having fair use as a *defense* is problematic – it’s costly to employ, and the burden of proof falls on the defendant. (Admittedly, this isn’t quite true at the summary judgment stage, but let’s put that aside.) Tim rightly emphasizes the subject matter requirement: in a suit by an organization like AP, with content that’s mainly factual, we should want judges to be stringent in pressing a plaintiff to show that what’s copied is protected material. I’m skeptical this would actually happen, but it would be one way of reducing the cost of asserting lawful use of material.

    The Media Bloggers Association has been beaten up a bit for negotiating with AP to try to get some workable baseline rules about fair use. I can immediately see the problems with this approach – floors rapidly become ceilings – but I don’t see an alternative to having fair use as this weird ex ante standard that’s nigh impossible to predict. Any thoughts?

  5. Great post, Derek — I hope it gets quoted everywhere. Even in chunks longer than 4 words.

    The idea of a numerical guideline makes me very nervous because I am acutely aware of what happened when academic publishers arbitrarily set a number of words that teachers could copy for classroom use. They filed a suit, and one by one the schools caved, until now most schools adhere to the restrictive guidelines as a matter of institutional policy.

    I wish Berkman or Stanford CIS or someone could goad AP into suing!