AP Becomes “Bad Cop” To “Protect” Newspaper Content Against “Misappropriation”

The Associated Press announced an aggressive new policy whereby it is going to try and get more money for newspaper content online or take legal action against “copyright violators” and those that won’t pay. From the AP’s own press release:

The Associated Press Board of Directors today announced it would launch an industry initiative to protect news content from misappropriation online.

AP Chairman Dean Singleton said the news cooperative would work with portals and other partners who properly license content – and would pursue legal and legislative actions against those who don‘t.

“We can no longer stand by and watch others walk off with our work under misguided legal theories,” Singleton said at the AP annual meeting, in San Diego.

The quote at the end is vaguely reminiscent of the rogue US general in the 1964 Cold War satire Dr. Strangelove who will no longer allow the “commies” to “pollute our precious bolidly fluids.”

What’s unclear in the new AP policy is whether the organization would now want money for what I’ve just done: linking to a piece of AP content and quoting three sentences. It might.

While some of the interviews and discussions surrounding AP’s announcement suggest that the news association is trying to shut down wholesale or substantial copying of its articles without permission or attribution, there’s reason to believe that they will be going after the kind of use in this article as well. If they don’t want money, perhaps they’ll want advance permission to use the content.

Danny has written a very long and detailed discussion on his personal blog of why the AP policy is misguided, especially with regard to search engines (read: Google). Google has also responded on its Public Policy Blog:

We show snippets and links under the doctrine of fair use enshrined in the United States Copyright Act. The fair use doctrine protects transformative uses of content, such as indexing to make it easier to find [pdf]. Even though the Copyright Act does not grant a copyright owner a veto over such uses, it is our policy to allow any rightsholder, in this case newspaper or wire service, to remove their content from our index — all they have to do is ask us or implement simple technical standards such as robots.txt or metatags.

The Fair Use Doctrine says the following:

[F]air use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(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.

The notion of what is “fair use” is somewhat ambiguous when applied to the Internet. It’s also at the center of this brewing controversy and may eventually get litigated by the AP. This would be a big risk for AP and newspapers more generally because a decision could go against them. To my incomplete knowledge the doctrine has not been tested in a web-related context around linking and excerpting content online. The AP maintains, however, this isn’t a “fair use” issue:

News aggregators and search companies have long asserted that collecting snippets of articles — usually headlines and a sentence or two — is allowed under the legal doctrine of “fair use.” News organizations have been reluctant to test that idea in court, and it is still not clear whether The A.P. is willing to test the fair use doctrine.

“This is not about defining fair use,” said Sue A. Cross, a senior vice president of the group, who added several times during an interview that news organizations want to work with the aggregators, not against them. “There’s a bigger economic issue at stake here that we’re trying to tackle.”

PaidContent’s interview with Dean Singleton sheds some light on the thinking behind the decision and announcement:

“I think our industry has been very timid about protecting our content, probably because we’ve done so well in the past few years that we didn’t recognize that misappropriation is as serious an issue as it is. As we’re now relooking at business models, it’s become clear that we must protect the rights of our content. … We perhaps have been timid about enforcing [those rights]. No more. We own the content but we’ve let those who spend very little, if any, get the most advantage from it.” What can they get from it at this point? “I am very confident that we will develop new models that help us get more.”

Newspapers want to exert more exclusive control over their content because they have lost faith in their ability to make money from advertising (read: search engine traffic) and will soon be trying to charge for access to it. Subscription and micro-payments models are being evaluated across the industry. Added Singleton:

“What’s becoming clear is that for many, many decades, advertising has supported our news mission and it’s not supporting it today. … If we don’t solve these issues, then survival is not assured. And we expect to solve these issues.”

So where do I start?

In fairness to the newspapers and AP there has been a lot of lifting of their content without permission, attribution or payment. Copyright holders do need to vigorously protect their interests or risk losing them. Having said that, the newspapers are partly hiding behind the copyright issue when, in reality, they have failed to compete successfully online. While they do create great content in many instances, they have lagged in innovating around business models and user experiences.

Danny suggests that the newspapers create “their own Hulu.” It’s a good suggestion. Long ago I also suggested that newspapers become news aggregators themselves. Why didn’t the newspapers invent Digg or Yelp or Trulia? Though there were and are some interesting experiments going on across the industry, there’s something in the culture of newspapers, it would appear, that has effectively inhibited them from fully embracing the Internet and new thinking about their content — beyond putting it up online. In fairness, there’s also a resource issue too.

While I acknowledge the right of newspapers to control their content, there’s a way in which this policy flies in the face of the culture of the Internet. It’s consistent with the worldview and approach that has landed newspapers in the predicament they’re in today. On some level it seeks to turn back the clock.

And while it’s true hypothetically that if there never was a Google News or Yahoo News or Topix (itself owned by newspapers) perhaps people would be going directly to newspapers sites to get their news and other local content. Yet the nature of the Internet made these aggregator sites all but inevitable. Why didn’t the newspapers develop them first?

I acknowledge the dire predicament newspapers are in and that they need to “do something.” (I’ve devoted lots of writing on my blog to newspapers.) And honestly I wouldn’t have any magic solution if I were being asked to devise a strategy to “save the industry” at this point. However they should seek to exploit distribution — including mobile and its new opportunity to charge for content — rather than limit it.

There’s also a way in which this newly announced policy is a giant PR blunder for AP and by extension newspapers. They might have consulted with Google and other “aggregators” and negotiated a more online-friendly policy before going public with an approach that feels both hostile and desperate.

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Postscript: Google’s Eric Schmidt addresses the NAA (newspaper) conference (audio).