I May Have Been Wrong In My Last Post
At the end of the last post, I said I didn’t think that AP would succeed in its efforts to impose fees on blogs that quoted its content.
I forgot about the provisions of the Digital Millennium Content Act of 1998. The DMCA gained fame when it was used by the RIAA to prosecute “little” people for downloading copyrighted songs. The tactic didn’t really work, other than to get rid of Napster and some similar “sharing” sites.
The revised statute could well be used to apply enormous pressure on you and me to pay AP a bribe to be allowed to fairly use its content. You see, the statute allows AP to give notice to our internet service provider (ISP) that it has a “good faith belief” that we are infringing on its copyrighted content. My ISP is AT&T. It gets a notice that AP thinks that I am infringing. The DMCA offers a “safe harbor.” If it gets the good faith notice of infringement, it can avoid liability by “respond[ing] expeditiously to remove, or disable access to, the material that is claimed to be infringing….” Click here for the statute.
So, what do you think AT&T, or your ISP, is going to do? It won’t “remove” the allegedly infringing quote on your blog. It will “disable access,” in plain English, it will turn off your connection to the internet. An ISP isn’t going to investigate, it is going to pull into its safe harbor.
What’s left for you to do? You can sue AP and AT&T. The winner gets attorney fees. If AP wins, it gets fees and multiple damages and/or statutory minimums.
So, if AP, inadvisably, decides it doesn’t want us to quote it without paying, what does it do? It isn’t a big deal, or expensive, for it to identify each of us that has quoted its content. You’ve heard of Google, it knows everything. You probably have not heard of iCopyright.com. iCopyright wanders around the internet finding its clients’ content. Guess who’s a client? Yep, AP. Though I didn’t fully research it, AP and other online publishers imbed tags in their content. I gather that iCopyright sends bots about to find out where the tags are. So, it’s “tag, you’re it.”
So, AP decides to quit playing nice. How many “good faith” notices does it send to AT&T, Comcast, etc.? A couple of hundred, or a couple of thousand, each? Then a week or so later, a few hundred or thousand more? Your internet is cut off, unless your ISP decides to fight. Do you really think it will fight for you? Enough of this and everyone is not quoting AP or is paying AP, except me a few other lawyers who would file suit. In the end, AP wins and loses a few lawsuits and gains a lot of income from those of you that won’t fight. In the end, it gets its way: bloggers won’t quote AP. Maybe that’s a good thing.
6 comments:
When you copy and paste their words into "Rather Than Working," you should be copying and pasting text only -- no embedded tags should come with it. To be sure, switch over to the "Edit HTML" tab in Blogger and look at the copied/pasted text and delete anything that isn't what you are quoting.
Another possible solution - don't quote, paraphrase. Or find a newspaper site that has picked up the AP story and quote that newspaper, citing IT, and then claim ignorance that it was an AP story.
A bunch of years ago the web development community was in an uproar because Unisys decided to collect some sort of royalty payment from any site using GIF images (Graphical Interchange Format), since they own (owned?) the patent on GIF technology. I have GIFs all over my site/sites and have never been contacted by Unisys, even though they had plenty of opportunity. Over the years, I have done a couple of jobs for them. And I used GIFs on them.
Will the courts have to decide whether the DMCA trumps fair use, or does the DMCA specifically say that fair use no longer applies?
Wikipedia has a fledgling public domain news utility:
http://en.wikinews.org/wiki/Main_Page
If you go to the front page of Wikipedia.org, they've got tons of public domain resources available. We should make an effort to use them and support them when we can.
Hey Pos and Thomas,
I'm not really worried about AP coming after me. If it did, I'm quite sure that my quotes fall within the fair use exception to copyright protection.
As to "trumping," copyright law still remains in full effect, the DMCA deals with its application to digital media. The problem with the DMCA is that it changed the dynamics of a claim for infringement. Prior to its enactment, if the holder of a copyright claimed you were infringing, it sent you a demand to cease doing so. It then had to file suit to get an injunction and seek damages. Now, it goes to your ISP and demands that it block access to the alledgedly infringing material, which the ISP does because it doesn't want to be responsible for a penalty. You still have the defense of fair use; but, it's after the fact of you being kicked off your ISP.
AP doesn't make money except by selling its content to subscribers -- newspapers, radio stations, TV stations, Yahoo!, etc. I accept that anyone who reprints in toto multiple AP stories -- building their own virtual newspaper out of AP content can, theoretically, harm AP. Because people looking for news may be directed to the pirate site and not to the AP subscriber.
AP wants the traffic for its subscribers so its subscribers can continue to buy AP content.
BUT -- when you or I quote the odd paragraph here or there from an AP story, with due attribution, and link to a paying subscriber's copy of the entire article, adding our own spin or insight or snark, we are (in our own teeny-tiny, insignificant way) driving traffic to an AP subscriber. Because our readers may be curious enough to click on the linked story and read it in its entirety. This helps AP's customers make money... page views up, ad revenues up, etc.... thus helping AP to make money.
And -- since we're helping AP to make money, far from paying to quote a snippet of the odd AP story, we should expect compensation from AP for the benefit we are conferring.
I'm thinking class action here....
(And -- yes -- that's tongue-in-cheek and just a little crazy... but what AP allegedly is proposing is far, far crazier still. In my opinion.)
Dave,
The technology you speak of is called ACID (Automated Content Infringement Detector). It’s similar to Google as you mentioned but even more similar to Copyscape.com. Everyone who owns intellectual property, including you, has the right to know where their work is being use, by who, how much of it is being used, and are they making money off of it. That is what ACID does. It’s available for all our clients and soon individual creators through our ©reator Console, Http://Creators.iCopyright.com. You would probably be angry if some blog scrappers, copy scrapers, or someone else took your material for commercial purposes. Our technology is trying to eliminate that problem by finding all incidents for you, instantly. iCopyright however does not dictate to your or the publisher who is infringing and who is within fair use, or who to send take down notices to. That is to their discretion, were just the technology.
Tyson O'Donnell
iCopyright Product Marketing Intern
"were (sic) just the technology" doesn't really wash your hands clean when you know full well how that technology is being used.
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