Fair Use v. Plagiarism/Copyright Infringement (Updated: Another Blogger Takes a Stand, and the A.P. owes Michelle Malkin $132,125 under its new guidelines!)

June 18, 2008 by Jenn Sierra
Filed under Web 2.0

(Updates at Bottom of Post)

Original Post, 06/17/08: Yesterday, the folks at TechCrunch made what might seem like at odd announcement regarding stories from the Associated Press (A.P.):

…Here’s our new policy on A.P. stories: they don’t exist. We don’t see them, we don’t quote them, we don’t link to them. They’re banned until they abandon this new strategy, and I encourage others to do the same until they back down from these ridiculous attempts to stop the spread of information around the Internet…

What is this about?! The A.P. has been around since 1846, and according to its own “about” page,

AP’s mission is to be the essential global news network, providing distinctive news services of the highest quality, reliability and objectivity with reports that are accurate, balanced and informed. AP operates as a not-for-profit cooperative with more than 4,000 employees working in more than 240 worldwide bureaus. AP is owned by its 1,500 U.S. daily newspaper members. They elect a board of directors that directs the cooperative….AP has received 49 Pulitzer Prizes, more than any other news organization in the categories for which it can compete. It has 30 photo Pulitzers, the most of any news organization.

Because of its size and reputation, the A.P. is often privy to the “scoops” on news that other news organizations need, and that bloggers often link to or editorialize for their readers. The A.P. is very protective of its content. If you go to this story, and look at the bottom, you’ll see the copyright information that accompanies most A.P. stories published directly on its site, or on the sites of news organizations which have been approved to syndicate the information:

© 2008 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed. Learn more about our Privacy Policy…Click here for copyright permissions! Copyright 2008 Associated Press

If you follow the copyright permission information for blog posting, you’ll see that the A.P. would like to charge by the word for any blogger who wants to use an excerpt from an A.P. article for more than one month.

Bloggers don’t do this. Bloggers typically publish using the “Fair Use” laws. An example of the one Ft. Hard Knox is using is here):

The various parts of this project contain some copyrighted material for which use has not been authorized by the copyright owners. We believe that this not-for-profit, educational use on the Web constitutes a fair use of the copyrighted material (as provided for in section 107 of the US Copyright Law.) If you wish to use this copyrighted material for purposes that go beyond fair use, you must obtain permission from the copyright owner. Fair Use notwithstanding, we will immediately comply with any copyright owner who wants their material removed or modified.

Some general guidelines apply. For example it is generally acceptable in the blogosphere to quote a short excerpt from another source, making sure to link to the original source. What constitutes and “excerpt” varies, from about 250 words, or 10% to no more than 40%. Even in the open-source environment of the blogosphere, it is still very poor form to either copy and paste an entire article to your blog without the original author’s permission, or to “plagiarize” another author, by using his or her writing, and claiming it as your own.

Here are some points to clarify how Ft. Hard Knox has handled common cross-posting issues:

Press releases, whether published on a website, or e-mailed to the blogger may be re-published as “non-contributory.” This means that you can simply publish the press release under your own name, as the author. You will need to use your own judgement about whether you want to copy and paste it, or modify it to your writing style.
Many bloggers have understood agreements about cross-posting (which is the blogosphere’s version of “syndication”). For example, FHK has made arrangements with a couple of bloggers to cross-posts intro’s to all of their blog articles here, with links to the originals, to help those bloggers promote their content. Also, FHK routinely has bloggers e-mail us articles for posting on FHK if appropriate. We also have standing agreements with a few bloggers to cross-post articles they’ve written occassionally, as the content applies to the goals and readership of the FHK project.
FHK participates in a couple of weekly “blogbursts,” on which one blogger e-mails a post to an entire of list of bloggers who, in turn, post the article, and link to everyone else who has posted that article.
FHK has a running “Blog Honor Roll,” on which we list the title and an excerpt of posts by bloggers elsewhere on the web. This is used to promote the other bloggers, and encourage link exchanges.
U.S. Government and State Government information posted on the web is paid for by taxpayers, and is therefore, generally available for use and re-posting by bloggers in the United States. (Remember, “of the people, by the people, and for the people”? That includes bloggers! Hat-Tip to Dr. Bill for this tip.)

These cross-posting techniques are covered under “fair use” laws in the blogosphere, but might be considered “plagiarism,” or “copyright infringement” by the old media.

Currently, there is a struggle going on, and the A.P., a giant in old media and a group of bloggers are currently in the process of trying to work out an agreement on these matters. From the tone of the legal department at the A.P., it sounds like the press giant is trying to educate bloggers to go along with the older way of doing things. By doing this, it will be alienating itself from the blogosphere, as more and more bloggers take the posture of TechCrunch, and “ban the A.P.”.

Also see:

Hat-Tip to Leslie Carbone for some of the great links in this post.

Update #1 Work Bench has listed the seven “takedown requests” sent to the Drudge Retort from the A.P.. As you will see, they are mostly feed links, and excerpts posted by users, mostly linking directly to main stream media outlets.

James Lewin, of Podcasting News: New Media Update has some good information specific to podcasting bloggers, including links to legal resources.

(Hat-tip, EFG, at Kansas Meadowlark)

Update #2 Warner Todd Huston weighs in a the Publius Forum:

…[F]rankly, I don’t care what the AP thinks they are going to charge for using snippets of their stories. I will NOT abide by this nonsense of 5 words or $12.50 a word after no matter how many “rules” they claim to have written. I will continue using parts of their stories in my criticism no matter what they say.

Here’s the thing, if we abide by the AP’s desire to severely limit our usage of snippets of their reports they will have effectively eliminated any criticism of them…(more)

Update #3 Michelle Malkin says if the A.P. wants to start charging by the word, they owe her some money! See: Hey, Associated Press: You owe me at least $132,125!

Update #4 Take our poll!

(Also on GCV, COA)

Tags: Associated Press, Copyright, Fair Use

Comments & Trackbacks

22 Responses to “Fair Use v. Plagiarism/Copyright Infringement (Updated: Another Blogger Takes a Stand, and the A.P. owes Michelle Malkin $132,125 under its new guidelines!)”

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Comments

Buffoon on June 17th, 2008 6:01 pm

I read about this somewhere the other day, no where near as in depth though.

AP is a monopoly and its going to be impossible to avoid them, at least I don’t know how one could. I should have just started a gardening blog, … maybe it’s not too late…
Ali A. Akbar on June 17th, 2008 7:40 pm

I’m standing with TechCrunch and anyone who wants to finally breakup this monopoly the AP has
Ron on June 17th, 2008 8:27 pm

This all started with a notice the AP sent to the Drudge Retort demanding they remove quotes that came from AP. The quotes were what would normally be considered “fair use” by most everyone. The AP quickly backed down, though they did not retract their removal request, and said they wanted to work on a comprehensive policy as to how others could use their content.

The AP apparently believes they can make their own law by creating policies, thereby bypassing multiple court rulings that define fair use pretty well. Most legal scholars believe the AP would lose any court battle should they choose to test their legal theories. In the end, however, most bloggers would be unable to face such a battle and would simply comply with any demand to remove content whether the request is reasonable or not.

The AP’s position is that if you can get the gist of their article from the quote then use of the quote is a copyright violation. The courts disagree but when did that ever stop idiotic publishers with deep pockets?
Buffoon on June 17th, 2008 9:06 pm

Well, the inner capitalist in me sides with the AP, after all, it is their property and I don’t want to be liberalish and hide behind some court ruling.
Jenn Sierra on June 17th, 2008 10:15 pm

Works for me, Buffoon…if the Associated (with Terrorists) Press wants to legislate itself right into internet oblivion, I think we should support its right to do so.

I’m just pointing out that there is a learning opprtunity here.
Buffoon on June 17th, 2008 10:27 pm

Just sayin’
Leslie Carbone on June 18th, 2008 7:08 am

Good post, Jenn. Thanks for the link. I’m sorely tempted to keep citing/linking AP just to punish them, but I have to agree with you and Buffoon on the IP issue. Jerks have property rights too. And if they trumpet those rights to the point of making themselves irrelevant, well, then the natural correctives in the market work once again.
Ron on June 18th, 2008 8:42 am

While your inner capitalist may tend to agree, a huge portion of content we have today would not exist were it not for fair use. Derivative works fall under fair use, for example. So Saturday Night Live would have been still born because EVERYTHING they do is derivative in nature, taking from content that is often copyrighted material. The same goes for pretty much all satire.

In the end, if all news sources can restrict the use of their content like this it will spell the end of online political discussion. You will never be able to refer to what was said in an article because exact quotes are not the only thing covered by copyright. Ideas are also covered. So if you’re ready to jettison fair use, be prepared to give up open political discussion. Oh, and also be prepared to never be able to copy your own CDs again as well.

The AP’s position is really a logical extension of what the RIAA has been asserting for a long time. That is that when you purchase content, the creator or owner of that content has ABSOLUTE control over what you do with that content. The RIAA has said that “legally” you are required to purchase a separate license for every device you use content on. So if you own three CD players, a computer and an MP3 player, you need to purchase five copies of a song or CD if you intend to play that music on all five devices. Thankfully the fair use doctrine exists to protect consumers from such nonsense. And it also protects our ability to discuss the news, including reasonable quotes from other sources so long as those sources are identified and credited. Obviously you can’t quote a whole article. Fair use does not protect you if you do that.
Warner Todd Huston on June 18th, 2008 10:13 am

This is some great info. I’ve given some link love over at Publius’ Forum!
Rosemary on June 18th, 2008 8:50 pm

Who uses the AP anymore?
Buffoon on June 19th, 2008 7:01 am

Good points Ron, maybe I could martyr myself and get some publicity for us all, you know, set up a blog and copy and paste
Buffoon on June 19th, 2008 7:03 am

oops , hit enter by mistake..
..copy and paste EVERY AP article that comes down the chute and see if they notice…..
of course when the cops pick me up I would be wearing a D=S shirt and FHK hat for the cameras
Jenn Sierra on June 19th, 2008 7:42 am

No, Buffoon…please don’t get yourself arrested (or fined). Besides, where would you ever get that much stuff from the A.P. that you would actually want> on your blog?!
GOPper on June 19th, 2008 12:38 pm

Jenn and company. I would be careful with the attention you’re trying to draw here, considering you both fail to properly source your photos AND hotlink them.

Both BIG no-nos.

Just sayin.
Jenn Sierra on June 19th, 2008 1:11 pm

Well, thanks for the “warning,” GOPper, but we only use photos that either we have permission to use and/or that are in the public domain, and when it is appropriate, we include a “hyperlink” from the photo to the original blog post or web site. This is different from “hotlinking,” which is stealing the bandwith of the blog/website that originally posted the photo. For more information see our FHK SitRep 10.03.07: Why it’s Important to Use Your Own Bandwidth!

In the future, GOPper, you might want to be careful about making false accusations - especially when you don’t understand what you’re talking about. That’s a big no-no.

Just sayin.
Ron on June 19th, 2008 3:54 pm

Gotta love veiled threats from powerless people! LOL

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