The Associated Press and the New "Fair Use"

BetaNews and BoingBoing have articles linked in NYTimes.com's Technology News Section about AP's current dust up about use of its news articles and headlines.

AP recently sent a letter to Drudge Retort (not Drudge Report) demanding that it take down links to, and quotes from, several AP stories. Last weekend, AP backed off the demand and announced that it was meeting this week with leaders of the Media Bloggers Association, whatever that is, to discuss a new system of payment for quoting AP.

It seems that AP currently wants anyone quoting five words or more from one of its stories to pay $12.50 (five words) to $100.00 (251 words or more). "Educational" and "non-profit" quoters get a break on the rates.

Regular readers know that I am a strong supporter of a creator's right to receive payment from users. Downloading songs or movies without paying the copyright holder is illegal and wrong.

Copyright law has always had a "fair use" exception. You are allowed to quote, without infringing on a copyright if your use falls within certain limits:

"US COPYRIGHT ACT, Chapter 1, § 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair 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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

Like a lot of law, this section of the United States Code, is not a model of clarity. (Though there are a lot of court decisions that flesh it out. For an excellent review of copyright and fair use history, I recommend this article by Lydia Loren.) AP's system is much clearer. You get four free words, after that you pay. If AP can get people to buy into it, fine. A bright line rule would of course be easier for AP to enforce. It would provide certainty for users.

There are two problems. First, it isn't the law. If the idea of fair use is going to be changed, it is a matter for Congress. Second, AP's numerical approach would gut the purpose of the fair use doctrine. Will teachers, scholars, researchers and pundits pay? Maybe some; but, most would not. Public discourse would suffer.

This last point belies the real purpose of AP's gambit. The great, great majority of commercial users of AP's content, newspapers, magazines, commercial bloggers (i.e., Huffington Post) and radio and television news, already pay for AP content. The gambit can only be seen as an attempt to profit from the rest of us, the great majority, fairly using the content to make a point.

Will it work? I don't think so. In the meantime, I'll probably use AP less as a jumping off point for my avoidance of work.