For a blog to feature news content from an Associated Press article is about as common as the sunrise, so it came as something of a surprise last week when the news agency went after a prominent liberal blog for what seemed like a minor excerpting issue.
Last week, The A.P. took an unusually strict position against quotation of its work, sending a letter to the Drudge Retort asking it to remove seven items that contained quotations from A.P. articles ranging from 39 to 79 words.
On Saturday, The A.P. retreated. Jim Kennedy, vice president and strategy director of The A.P., said in an interview that the news organization had decided that its letter to the Drudge Retort was “heavy-handed” and that The A.P. was going to rethink its policies toward bloggers.
The quick about-face came, he said, because a number of well-known bloggers started criticizing its policy, claiming it would undercut the active discussion of the news that rages on sites, big and small, across the Internet.
Well, of course it would. The AP is one of the most commonly linked to news outlets on the planet. If bloggers can’t excerpt 79 words from an article, it’s going to have an effect. It was encouraging that the AP realized that its aggressive posturing towards the Drudge Retort was, in fact, “heavy-handed.”
The result, according to the NYT, is an effort on the part of the Associated Press to “define clear standards as to how much of its articles and broadcasts bloggers and Web sites can excerpt without infringing on The A.P.’s copyright.”
That’s probably a good idea, though I’m not sure if the standards are going to be a step in the right direction or not.
For example, the AP conceded a “heavy-handed” approach to the Drudge Retort, but the news outlet nevertheless believes it’s right to go after blogs “when we feel the use is more reproduction than reference, or when others are encouraged to cut and paste.”
In fact, the AP’s Kennedy still expects the Drudge Retort to remove the seven items. In this sense, the AP regrets the tone of its demands, but not the substance.
Even if The A.P. sets standards, bloggers could choose to use more content than its standards permit, and then The A.P. would have to decide whether to take legal action against them. One important legal test of whether an excerpt exceeds fair use is if it causes financial harm to the copyright owner.
“The principal question is whether the excerpt is a substitute for the story, or some established adaptation of the story,” said Timothy Wu, a professor at the Columbia Law School. Mr. Wu said that the case is not clear-cut, but he believes that The A.P. is likely to lose a court case to assert a claim on that issue.
“It’s hard to see how the Drudge Retort ‘first few lines’ is a substitute for the story,” Mr. Wu said.
Kennedy responded by telling the Times that the AP believes “that in some cases, the essence of an article can be encapsulated in very few words.”
So, what is it, exactly, that the AP plans to do? It feels bad about the heavy-handed letters, but it expects the heavy-handed demands to be met. It doesn’t want to sue bloggers, but it will enforce its copyright protections. It wants AP content to be part of the online discussion, but not if AP content can be encapsulated in a few words.
The Associated Press is going to figure all of this out and establish a new policy. We’ll see how that turns out.