Associated Press challenges guidelines on fair use

Last week, the Associated Press (AP) took a stance against quotations by bloggers they felt were inappropriate. The company requested that the Drudge Retort remove seven quotations of AP articles, ranging from 39 to 79 words in length. Since then, they backed down and rescinded their request in light of criticism. Jim Kennedy, vice president and strategy director for AP, said, “We are not trying to sue bloggers,” and voiced a desire to keep looking for viable solutions. While the AP did not in the end set new standards concerning fair use, a more formal announcement concerning accepted length and context of quote may be on the horizon.

While this is not a legal blog, the freedom to reference the content of others is a vital part of how online communities of all kinds grow, including message boards, “social networking” sites, and blogs. Accepted online practices have clearly evolved past the level that most companies are comfortable with. Yet, these same companies rely on loosely affiliated social networks bloggers to propagate their content. This push vs. pull use of content certainly defines the friction over the latest wave of websites and web-based applications, broadly termed “Web 2.0.”

There is no established legal standard for “fair use” of copyrighted materials on the Internet. This has led to many legal confrontations, particularly in the music industry, which has led innumerable lawsuits. None is more interesting, storied, and amusing than the band Negativland’s “FAIR USE: The Story of the Letter U and the Numeral 2.” In their more extreme moments, Negativland has urged for adoption of an extremely liberal interpretation of fair use, allowing for any length of content to be used in musical compositions. This makes for interesting reading, but more a more subtle form of acceptable collaboration will likely dominate.

As pointed out by Lessig in “Code 2.0,” copyright law should “strike a balance between control and access” (p. 185). He notes that amateur content, the stuff of most blogs and YouTube, always existed, but it used to be exclusively for private entertainment. Amateur content, obscured from mass public view, could not compete with professionally produced media because end users didn’t have access to distribution channels. Your hometown band or puppet show generally couldn’t compete with radio or television in others towns or states. The Internet provided to the amateur a similar footing as professionals. YouTube videos, which would probably be limited to your dad’s super-8 camera decades ago, compete with episodes of “Lost” and “The Office” for consumer eyeballs.

That the AP backed down from its initial stance is a good sign, and shows that they recognize of the precariousness of the situation. Entertainment in general is shifting from tangible products to services and activities. Interactive game sales are up, while music and movies are down. At APOC, we teach on these legal issues, but within the larger context of managing users. While content providers are sometimes quick to react against infractions, legal routes are not the only recourse. Individuals also operate based on accepted social norms, market regulations, and the architecture of websites (such as features).

Update: There's an excellent discussion of this issue on Kojo Nnamdi's radio show.