Patterico's Pontifications

6/17/2008

Irony Alert: AP Attacks Blogs for Quoting Their Stories, Then Quotes Even More Extensively from Blogs

Filed under: General,Kozinski — Patterico @ 6:44 pm

So the AP has been threatening bloggers who quote their stories:

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.

Even after an AP spokesman acknowledged that the organization’s tactics were “heavy-handed,” they still didn’t really back off:

Still, Mr. Kennedy said that the organization has not withdrawn its request that Drudge Retort remove the seven items. And he said that he still believes that it is more appropriate for blogs to use short summaries of A.P. articles rather than direct quotations, even short ones.

“Cutting and pasting a lot of content into a blog is not what we want to see,” he said. “It is more consistent with the spirit of the Internet to link to content so people can read the whole thing in context.”

Now, in a slightly ironic twist, the AP is taking content from a blog site. Namely, mine.

In a news item about the e-mail from Judge Kozinski’s wife that I posted on this site, an AP article lifted numerous passages.

I counted 154 words quoted from my post. That’s almost twice the number of words contained in the most extensive quotation in the Drudge Retort.

So am I going to be an ass and threaten to charge them, or sue them, or demand that they remove the quotes? Of course not. They benefited from my content and I benefited from their link.

Just like when the Drudge Retort quoted them.

And I’m going to go on quoting AP stories, within fair use guidelines.

And if they start threatening me, I’ll have to remind them that they did the same to me.

UPDATE: Maybe I should reconsider. Michelle Malkin says the AP owes me $188,750. (OK, so Marcy Tiffany actually wrote all the words that were quoted, so maybe they owe her. But she was my exclusive source!!) And Glenn Reynolds says: “Yes, but they’re news professionals, so they shouldn’t have to pay for content. That’s for everybody else. . . .”

UPDATE x2: Orin Kerr notes that I don’t own the copyright in Marcy Tiffany’s e-mail, which is such a great point that I already made it — in the UPDATE above. But that doesn’t change the irony here. I seriously doubt that the AP paid Ms. Tiffany, or asked her explicit permission to quote from her e-mail — because they knew they didn’t have to. Their story was a classic example of fair use. So, if for some bizarre reason she had denied the AP permission to quote her e-mail — which had already been published on my site, and related to a matter of intense public interest — it wouldn’t have mattered. They still could have written the same story.

But the AP wants to deny that same fair use right to bloggers.

It’s not just the AP that gets to take advantage of the concept of fair use. Bloggers can too. But the AP is trying to frighten us out of exercising our rights. We shouldn’t let it happen.

UPDATE x3: If bloggers really want to punish the AP, the solution is here.

113 Responses to “Irony Alert: AP Attacks Blogs for Quoting Their Stories, Then Quotes Even More Extensively from Blogs”

  1. You know where I stand on this. Glad to see you are fighting for the forces of good and light.

    Justin Levine (8db65e)

  2. You’re a nice guy. They didn’t even provide a live link, just mentioned the name of your site.

    I’d harass them.

    JB (9fc4ff)

  3. Amen, brudda.

    MJ (e818f6)

  4. Well, since I believe that corporate stupidity should be rewarded accordingly, I’m completely comfortable with the bloggers turning our backs on them completely, and letting them twist in the wind over their obtuse and ridiculous actions.

    I read someone’s pretty logical description of exactly how tenuous their position, as basically information middlemen, really is combine that with the organization’s behavior over the last few years covering the War on Terror, I’d say good riddance if they closed up shop this evening. There’s an active marketplace out there – and other avenues for the widespread dissemination of news and information.

    If this, and the other clueless, unimaginative, and downright stupid business decisions of the dinosaur media cause them to go out of business, their previous market share of eyeballs distributed amongst the variety of other options for getting the news, well, hooray for Digital Darwinism.

    Wind Rider (367beb)

  5. That’s almost twice the number of words contained in the most extensive quotation in the Drudge Retort.

    Hoisted on their own petard! Sweet!

    proof (4721a6)

  6. “And if they start threatening me, I’ll have to remind them that they did the same to me.

    Amen to that. AP needs the bloggers and freelance journalists to undercover the truth in a story. The AP are acting like idiots. One minute the AP threatens Drudge Retort with lawsuits, the next minute the AP do a Rodney King on the Drudge Retort and bloggers [can we all get along approach]. If the AP is going to set their own ground rules on copyright law with charging words from AP, then rest assure the AP better be careful using words and stories of bloggers and freelance journalists withoutthe person or persons’ permission. No wonder people like me get irritated by nimrods from the AP and MSM and turn to the freelance and investigative journalists and bloggers for info.

    SP Biloxi (164f48)

  7. Bwahaha. I couldn’t be happier about this. This is exactly what their legal department deserves for being such a pain in my butt.

    Keep up the good fight, P!

    Respectfully yours,
    Brian

    Brian L. (6cb1b1)

  8. You want funny, they decided to charge 12.50 for the quoted material…

    I suggest you do as another blogger has done, and send them an invoice at $100 a word…

    Scott Jacobs (d3a6ec)

  9. Butting into your business: why not bring this to their attention now? You don’t have to sue them over it, nor must you demand that they remove Ms. Tiffany’s quotations from their articles. You could say, quite simply, that they have lifted a lot of material that Ms. Tiffany sent directly to you, that you will not complain, but that you expect them to give the same deference to you (and other bloggers) in the future.

    Side note: most newspapers now have a “most blogged” feature, or will link to websites that have blogged a particular article. Obviously, not all of the MSM takes this stance towards blogs.

    bridget (add3eb)

  10. Damn straight. These conservative blogs/boards who say they will no longer print and comment on the enemy propaganda, like Free Republic, are surrendering. It’s good deal for these commies when conservatives agree to no longer expose the left’s mischief.

    j curtis (c84b9e)

  11. “I counted 154 words quoted from my post.”

    Patterico, are they words of yours, or are they words that you were quoting of someone else’s (namely Mrs. Kozinsi)? How many of the words were yours?

    Orin Kerr (4f2df7)

  12. DOn’t matter, Orin. They were words from his blog post involving a letter that was writen exclusively to him…

    They quoted his blog, they quoted him…

    Scott Jacobs (d3a6ec)

  13. Nice link for you Patterico, over at Instapundit. Reminds us all who the professionals are!

    http://pajamasmedia.com/instapundit/

    Dana (f483c5)

  14. “Patterico, are they words of yours, or are they words that you were quoting of someone else’s (namely Mrs. Kozinsi)? How many of the words were yours?”

    Precisely zero. As I already noted in the update (which I wrote before I saw your comment), Marcy Tiffany wrote all the words in the question. So maybe the AP has to pay her instead.

    Patterico (cb443b)

  15. Orin,

    If the rule is that you don’t have to pay when it’s a quote from a source, then I take it that bloggers can lift any quote the AP obtained without having that factor into our alloted word count.

    Good to know.

    Patterico (cb443b)

  16. The mutual benefit that teh AP misses is that when we quote an AP article it drives traffic to their sites. Traffic means hits and hits mean money…if you’re into that and neither you nor I seem to be….but the AP is. If they didn’t provide a live link then the entire concept is further demolished.

    They get benefit from our quotes but when they use us, as in you, we get no benefit.

    Sooner or later someone is going to really perfect a news aggregation program that will pull from everyone who signs up. Just like how the AP started. But this time with no fees because the traffic will pay through advertising revenue. And AP will be a thing of the past.

    Quilly Mammoth (dbdcdb)

  17. You should write them a letter and see what their response/defense is. That way, if they ever come after you, you can use quotes from their defense in your response to them. It’d save you some money on legal fees. They might even be absurd enough to send you another letter charging that you illegally quoted from their defense. Then you could post the whole exchange. Imagine the comedy that could ensure.

    Heywood U. Reedmore (2d7b78)

  18. Scott Jacobs,

    I thought the question was who owned the copyright, not who owned the website. I assume that Patterico did not ask Mrs. Kozinski to transfer her copyright to him, and that he just had a license implied by her request to him to publish the e-mail. If that’s right, I would think that means that Patterico did not have any copyright in what Mrs. Kozinski said. That would suggest that copying her text cannot violate his rights.

    I don’t practice or teach IP law (other than some brief materials on criminal copyright), so I would be delighted to be corrected by someone who does if I am wrong, but that’s my sense of things.

    Orin Kerr (4f2df7)

  19. People should stop calling them the AP. Call them by their full name — the Asinine Press. Yes, even in links to them. Maybe they’ll figure things out, eventually.

    JKL (69f8ba)

  20. And P.S.

    Isn’t there a duty of diligence or some such in protecting your copyright?

    JB (9fc4ff)

  21. Patrick:

    Michelle Malkin says this about the AP’s lifting words from your blog post:

    If [Patterico] did decide to send a bill under the terms of my table-turning fee structure, that would be:

    $50 per URL= 3,775 x $50=$188,750.

    Dude. That’s a hefty windfall. Sure you don’t wanna reconsider?

    Paul (19c9b7)

  22. Ooops.

    That should be “blog posts”

    Paul (19c9b7)

  23. Patterico,

    Perhaps that would depend on whether the quote was given in writing or given orally? An author has a copyright in their written statements, but not in their oral statements that are not “fixed in any tangible medium of expression.” But I should say, I’m not sure: I’m not a copyright lawyer.

    Orin Kerr (4f2df7)

  24. Orin,

    Of course, as a technical matter, you’re right.

    But don’t be a killjoy. We’re having some fun with the AP here.

    It’s kind of like when the AP published all those pictures of Eliot Spitzer’s prostitute, the copyright holder was the picture-taker and not the prostitute.

    I’m trying to remember what the AP paid that picture-taker. I’m thinking it was . . . bupkis.

    Patterico (cb443b)

  25. Well, if the AP actually do pay up (which they won’t, but we can dream, can’t we?), I would suggest they make the check out to these folks:

    http://www.marinedefensefund.com/

    That oughta really stick in their craw…..

    MarkJ (7fa185)

  26. Ah, I get it: They’re right and you’re wrong, but you’re pretending that you’re right and they’re wrong so you can congratulate yourself for having the moral high ground. Got it.

    Orin Kerr (4f2df7)

  27. Sorry, guys. I doubt that even Ms. Tiffany has protectible copyright in her email. Is it really a work of authorship? Does its protection sufficiently advance the arts and sciences to overcome First Amendment considerations in its republication? Where’s Justin when you need him?

    nk (4bb2be)

  28. They’re right?

    What do you think they paid Marcy Tiffany?

    Patterico (cb443b)

  29. The point is that all of this is fair use, and the AP is most certainly not right to be terrorizing bloggers for using quotes of 39 words.

    Patterico (cb443b)

  30. nk, the standard is pretty low for what qualifies as protected under copyright law.

    Patterico (cb443b)

  31. But Patterico, in making a case against you doesnt the law of proof demand that the state the source of their accusation? Does it not require that they quote your blog without seeming to be infringing on your copyright? Correct me if I am wrong please.

    love2008 (1b037c)

  32. nk…
    Perhaps we should run this past Levi for an expert opinion?

    Another Drew (8018ee)

  33. Wow.

    Send them a bill for $100,000 per word. Notify them them that all lifting of quotes (i.e., sales) from your site are final and cannot “be returned” (i.e., removed). Justify this by the fact that google and others have cached the pages with your content.

    Have fun with them!

    dbs (0a5cc0)

  34. Patterico,

    I am no copyright lawyer, but I would think that when a person submits an open letter for publication in an effort to “get the word out” about the truth of a matter, that effort to get the word out grants an implied license to others who want to get the word out about the person’s claims. So I would think, at least; as I said, I am not a copyright lawyer.

    As for the point about fair use, your claim that “this is all fair use” strikes me as questionable. Fair use is very mushy, and its contours are unclear; I’m not sure that quoting 50 words or 75 words from an AP story is fair use. At the very least, I don’t think it’s fair to state that such matters are certain when they are anything but. You may have a personal policy preference that the AP should not enforce its legal rights, but that preference does not mean those rights do not exist.

    Orin Kerr (4f2df7)

  35. So am I going to be an ass and threaten to charge them, or sue them, or demand that they remove the quotes? Of course not.

    Couldn’t you be an ass just this once? First you need to get the mule’s attention….

    jaed (0f890e)

  36. Correction.
    But Patterico, in making a case against you, doesnt the law of proof demand that “they” (correction on “the” @#30) state the source of their accusation? Does it not require that they quote your blog without seeming to be infringing on your copyright? Correct me if I am wrong please.

    love2008 (1b037c)

  37. Isn’t there a duty of diligence or some such in protecting your copyright?

    No, copyright attaches on creation of the work and exists unless and until it’s waived or passes into the public domain (essentially impossible under the current unconstitutional copyright term).

    Trademarks have to be defended or you lose control of them after a while.

    Taltos (4dc0e8)

  38. Is there some joke nobody’s letting me in on? It’s Drudge Report, not Drudge Retort. Although the unintended appositeness is appealing, it’s hardly accurate. Drudge doesn’t actually retort to anything, he just links.

    bour3 (66ba12)

  39. The Drudge Retort is a leftist parody of the Drudge report…

    Scott Jacobs (d3a6ec)

  40. I am no copyright lawyer, but I would think that when a person submits an open letter for publication in an effort to “get the word out” about the truth of a matter, that effort to get the word out grants an implied license to others who want to get the word out about the person’s claims. So I would think, at least; as I said, I am not a copyright lawyer.

    I think the AP knows Ms. Tiffany is not going to sue because she does want to get the word out. I don’t know if that means legally she has granted an implied license to the world.

    As for the point about fair use, your claim that “this is all fair use” strikes me as questionable. Fair use is very mushy, and its contours are unclear; I’m not sure that quoting 50 words or 75 words from an AP story is fair use. At the very least, I don’t think it’s fair to state that such matters are certain when they are anything but. You may have a personal policy preference that the AP should not enforce its legal rights, but that preference does not mean those rights do not exist.

    Well, of course fair use depends on the facts, but my view isn’t that legal rights shouldn’t be enforced. It’s that the First Amendment grants a broad right of commentary, and unless someone demonstrates a pattern of simply lifting huge swaths of content without adding value in the form of commentary, most quotations of such minimal length are going to be fair use.

    For example, take this recent post of yours, which has one line of introduction, 10 lines of quotation, three lines of your commentary, and a hat-tip.

    That’s a pretty standard blog post. And while I didn’t count the number of words you quoted, it appears to be more extensive than 79 words — the longest quotation by the Drudge Retort.

    I have no doubt that your post constitutes fair use. Do you?

    Patterico (cb443b)

  41. Oh, and just to make it extra fun, Orin — you quoted the AP.

    Do you have a personal policy preference that the AP should not enforce its legal rights?

    Patterico (cb443b)

  42. bour3, two different sites.

    If bloggers were to each link to four words in a random (each choses their own) AP story (no charge) and link to that story (no charge) … in every post (no charge) … nah, there probably aren’t enough bloggers.

    htom (412a17)

  43. Prof. Kerr’s instincts were correct with regard to the copyright ownership and transfer issue (yeah, I know — no one really cares); ownership of the expression in the email is retained by the author unless she transfers the copyright ownership via an instrument of conveyance or a note or memorandum of transfer that is signed by the owner.

    In an interesting coincidence, Judge Kozinski has made two notable statements on copyright ownership transfer — (1) execution of such a transfer must be (more or less) contemporaneous (Arthur Rutenberg Homes, Inc. v. Drew Homes, Inc., 29 F.3d 1529 (11th Cir. 1994), and (2) the transfer clause “doesn’t have to be the Magna Charta; a one-line pro forma statement will do” (Effects Associates, Inc. v. Cohen, 908 F.2d 555 (9th Cir. 1990).

    The AP may be too dense to understand its own hypocrisy here — I wish them good luck (*cough*) in trying to enforce this dubious legal position.

    An IP Attorney (7bb54e)

  44. IP Attorney,

    Does that mean the AP should have requested permission from Ms. Tiffany to quote her email before it reprinted excerpts? Or did Patterico’s publication operate as a release for the AP and others to print excerpts?

    DRJ (8695bd)

  45. I would thik the former, ince she’d given Patterico express permission to publish.

    Just becuse I write a story and have Baen publish it, that doesn’t mean someone can photocopy and hand out free copies…

    Scott Jacobs (d3a6ec)

  46. Prof. Kerr’s instincts were correct with regard to the copyright ownership and transfer issue (yeah, I know — no one really cares); ownership of the expression in the email is retained by the author unless she transfers the copyright ownership via an instrument of conveyance or a note or memorandum of transfer that is signed by the owner.

    I thought his instinct was the opposite — that she had granted an implied license to the world. I’ll quote him:

    I am no copyright lawyer, but I would think that when a person submits an open letter for publication in an effort to “get the word out” about the truth of a matter, that effort to get the word out grants an implied license to others who want to get the word out about the person’s claims.

    So is that right or not?

    That, I think, is a different question from the issue of fair use, though there could be considerable overlap.

    Patterico (cb443b)

  47. Note: I’m not arguing the point that the copyright is hers and not mine. I acknowledged that in the post, in the update I wrote even before seeing Orin’s comment.

    Patterico (cb443b)

  48. This is why only the insane get into copywrite and such IP law…

    Scott Jacobs (d3a6ec)

  49. As I have responded on my own blog, Patterico, yes, I do in fact have doubts about whether my quote was fair use. I am not a copyright lawyer, but my sense is that the fair use doctrine does not have a clear answer to whether my comment violated the copyright. If the copyright owner contacts me, I would be happy to take down the quote or truncate it to a point where the law is clear.

    Orin Kerr (4f2df7)

  50. Oh, and Patterico, re your 9:20 comment, there is a difference between a license and a transfer of ownership.

    Orin Kerr (4f2df7)

  51. I personally suggest you e-mail and confront them.

    Dawnsblood (a83e77)

  52. Oh, and Patterico, re your 9:20 comment, there is a difference between a license and a transfer of ownership.

    OK, fair enough. But if you have neither, then you’re stuck with fair use.

    Let’s see if the lawyer will weigh in on the implied license theory.

    Patterico (cb443b)

  53. Following very closely. I recommend that you push this issue until they acquiesce to the brave new world of people who actually understand. I go back and forth on my own blog of refusing to cite AP sources in utter disdain for the bastards and linking and citing them gratuitously just for the sake of it.

    Herschel Smith (d8696c)

  54. So, then, who owns the copyright on this comment? Have I licensed it to Patterico’s Pontifications? Is quoting it in response fair use? Can the AP pick it up and use it with Patterico’s permission? I think the answers are: Me, yes, yes and no.

    Not that I care, which is the real point, I think. Someone should sue AP just to have them agree that no one cares.

    Kevin Murphy (df0a56)

  55. I am no copyright lawyer, but I would think that when a person submits an open letter for publication in an effort to “get the word out” about the truth of a matter, that effort to get the word out grants an implied license to others who want to get the word out about the person’s claims.

    Orin,

    You made this comment to justify quotations past fair use (since you wouldn’t need the implied license concept for fair use quotations).

    And I guess the more you quote, the more you’re getting the word out. So the implied license could cover reproducing the material in full, under your theory. Correct?

    So:

    What about when a commenter submits a comment in an effort to “get the word out” about the truth of a matter? Does that effort to get the word out grant an implied license to others who want to get the word out about the person’s claims?

    What about when a blogger publishes a blog post in an effort to “get the word out” about the truth of a matter? Does that effort to get the word out grant an implied license to others who want to get the word out about the person’s claims?

    By your logic, I think I get to reproduce all your blog posts in full now, Orin. Under an implied license. Assuming, that is, that you’re trying to “get the word out” in them.

    Patterico (cb443b)

  56. Or, we could just all agree with my main point, which I stated above: “the First Amendment grants a broad right of commentary, and unless someone demonstrates a pattern of simply lifting huge swaths of content without adding value in the form of commentary, most quotations of such minimal length are going to be fair use.”

    Patterico (cb443b)

  57. patterico,

    i was under the impression that the original letter wasnt meant for publication. according to your post after you received a letter from her you contacted her for permission to print. she then edited it for publication. so originally it wasnt an “open letter”.

    i can just see this leading to blogs having disclaimers all over about who owns the copyright for comments and other such posted on them by the great unwashed.

    chas (12a229)

  58. I’m a patent nerd, not a copyright attorney, so take this with small Morton’s container of salt.

    Prof. Kerr – I read Patterico’s post as saying that the AP does not follow the standards that it would demand of others, not that his copyright was necessarily violated.

    We can imagine a situation in which Ms. Tiffany had published her letter on her own site. If Patterico, in the course of going about his business today, noted that 1) the AP emailed several bloggers with copyright complaints; and 2) the AP had excerpted more substantial portions of Ms. Tiffany’s letter than those it complained about, he would still be justified in noting the inconsistency. The format of the post would be slightly different, and it would lack a certain panache, as Patterico would not be affiliated with the email in question, but the irony would still be there.

    Re: implied licenses. Even if she, arguably, did grant such a license, a media conglomerate would be wise – especially if in the business of complaining about use of its own work by others – to verify that situation. Given that copyright protection vests once the work is put into printable form, which implies strong legal protection in one’s creative doings, I find it hard to believe that one could lose that protection inadvertently. The essence of intellectual property, from my understanding, is the right to exclude others from using it. While an implied license does not transfer ownership of the copyright (and the corresponding right to exclude non-owners, should one choose to do so), it would eviscerate the very protection that a copyright gives.

    A final thought: Patterico – and many bloggers – do not use their blogs for commercial purposes. One of the factors in determining whether or not use of a copyrighted work falls under “fair use” is commercial gain. The AP obviously is not using Ms. Tiffany’s work for non-commercial purposes: rather, the AP’s quotations are about as commercial as you can get.

    bridget (add3eb)

  59. Patterico you have not responded to my post on #35.
    But Patterico, in making a case against you, doesnt the law of proof demand that they state the source of their accusation? Does it not require that they quote your blog without seeming to be infringing on your copyright? Correct me if I am wrong please.

    love2008 (1b037c)

  60. Well, I suppose one could say that I try to use it for commercial purposes, since I accept Blogads in theory.

    But I haven’t gotten a submission in weeks, maybe months — so it doesn’t *feel* like I’m using it for commercial purposes!

    Patterico (cb443b)

  61. But Patterico, in making a case against you, doesnt the law of proof demand that they state the source of their accusation? Does it not require that they quote your blog without seeming to be infringing on your copyright? Correct me if I am wrong please.

    I think we have established that it wasn’t my copyright that they didn’t violate.

    Patterico (cb443b)

  62. Don’t forget the T-Shirt sales … er, sale. I bought one.

    DRJ (8695bd)

  63. Cool.

    Patterico (cb443b)

  64. Do we all agree that Orin Kerr is not a copyright lawyer?

    fat tony (601b8d)

  65. I agree, fat tony! I am not a copyright lawyer.

    On the subject of who owns the copyright in blog comments, it has been my understanding that this is unclear under current law. However, I looked around and found this interesting analysis indicating that if there is no blog comment policy, the commenter retains copyright in the copyright (subject to claims of implied license, I assume). Seems plausible to me, although I am not a copyright lawyer.

    Orin Kerr (4f2df7)

  66. I came over here after reading the exchange between Patterico and Orin Kerr at his site. I have decided not to quote anything from the AP at all. As a single blogger who makes no money from my blog and who is also on a fixed disability/retirement income that barely covers my expenses, I cannot afford any legal problems even if it was an army of one. I think the AP charging per word policy is discriminatory since it effectively prices me out of the market.

    However, my real beef is similar to Patterico’s irony as detailed by Malkin’s Post on the subject. She believes the AP owes her over $132,000 for parts of her columns they’ve lifted and published and without any link. She is also citing how they lift from her comment section, quoting whole comments, yet with no link back to either her blog or to the comment.

    So, Patterico’s irony point is well made. IMHO.

    Sara (3337ed)

  67. Sara, you have to do what you have to do. I understand your decision.

    But I can’t help but feel that you’ve been terrorized by an army of lawyers.

    And they didn’t even direct their frivolous legal threats your way.

    That’s the chilling effect in action, folks. You’re seeing it right there.

    Patterico (cb443b)

  68. I’m just catching up on this thread and had a question. Is Orin Kerr a copyright lawyer?

    daleyrocks (d9ec17)

  69. Sara, you have to do what you have to do. I understand your decision.

    But I can’t help but feel that you’ve been terrorized by an army of lawyers.

    She may have indeed been terrorized by that army of french lawyers, but most of the bloggers that are boycotting AP aren’t doing it out of fright but out of anger :)

    Lord Nazh (899dce)

  70. AP jumped into a quagmire with no exit plan.

    Perfect Sense (cae014)

  71. Since the AP (presumably) is trying to “get the word out”, does that give an implied license for others to reproduce their content? Seems a flawed concept to me, although I am not a copyright lawyer (or anything beyond a barracks-lawyer).

    Stashiu3 (3d02fd)

  72. I’m not sure I feel “terrorized,” but it is intimidating. I’m also angry. My natural inclination would be a big eff you to the news organization in question. But, I don’t have an Army of Davids that even know our little corner of the blogosphere exists and I’m not very good at being an out front person on my own.

    And it seems that everyone has a different interpretation on fair use. If you read Orin Kerr’s post and the comments, it is lawyers being lawyers and it scares the bejesus out of me. Here, it is a blogger who happens to be a lawyer talking to other bloggers and ordinary people and there seems to be more real world rationality. It leaves me confused and when I’m confused I’m not comfortable about sticking my own neck out. I’ve grappled with this subject for a couple of years now and I still don’t feel like my understanding is on solid ground rather than quicksand.

    From a very non-lawyer, it seems to me that the copyright laws are sadly in need of some updating.

    Sara (3337ed)

  73. “From a very non-lawyer, it seems to me that the copyright laws are sadly in need of some updating.”

    Updating?

    Copyright is a 300 year old anachronism designed in the era of the printing press. Today it is ineffective and unethically used to persecute the members of the public it was supposed to benefit.

    See The Promise of a Post-Copyright World by Karl Fogel.

    I suggest ‘abolition’ would be a more appropriate term.

    Crosbie Fitch (0fbda2)

  74. I would like to state, for the record, that I am also not a copyright lawyer.

    Evil Pundit (38b435)

  75. When I read this article, the first thing I did was to look for a copyright notification attached to this site; I didn’t see one. From my Copyright and Reprint Policy statement:

    All original material on Common Sense Political Thought is under the copyright of Common Sense Political Thought and the individual authors of articles. Permission for quotation, in whole or in part, is hereby granted, as long as the author and this website are referenced and credited. All articles have a trackback url listed, and if your site supports trackbacks, that is our preferred method.

    You have my permission to use it — as long as I get a kickback! :)

    Dana (3e4784)

  76. Does your quoting of that bit mean you have to pay yourself?

    Scott Jacobs (fa5e57)

  77. What I don’t understand is why Orin Kerr, who knew I had updated the post to say it’s not my copyright at issue, went and *subsequently* published a post that pretended like I had never written that update, and that I was claiming the copyright was mine.

    Patterico (cb443b)

  78. And it wasn’t his post or comments that got me to make the clarification, it was Michelle Malkin’s post. I hadn’t even seen Kerr’s comments before I wrote that update.

    But he saw my reference to my update, and commented on it, before writing his post.

    Did the desire to show me to be “wrong” overshadow the ethic of being fair?

    Patterico (cb443b)

  79. So am I going to be an ass and threaten to charge them, or sue them, or demand that they remove the quotes? Of course not. They benefited from my content and I benefited from their link.

    Just like when the Drudge Retort quoted them.

    My understanding is that the AP does not benefit from such links, because there is no central AP website containing AP stories which people link to. Instead, they are linking to various small newspapers, or whatever, that have published the AP article on their website. As such, the AP gets no benefit at all – the newspaper has already paid for the privilege of putting up the AP story, so more hits for it do the AP no good.

    John (f87755)

  80. I would like to state, for the record, that I am also not a copyright lawyer.

    I uised to be, but I was shot in the head during a convieniance store robbery and lost my memory. I had to relearn how to walk, and in the process rediscovered how to live a happy…

    No, wait… that was a movie I saw… Never mind… ;)

    Scott Jacobs (fa5e57)

  81. Mr Jacobs asked:

    Does your quoting of that bit mean you have to pay yourself?

    No, it means that I have to ask my wife for the money to pay myself! :(

    Dana (3e4784)

  82. This whole fiasco is an attempt by AP to silence bloggers who have challenged the validity of AP’s reporting. They are still pi**ed about the Jamil Gholaiem Hussein and the “Six Sunni’s Burned Alive” episode that clipped their “journalistic” wings. AP is just setting the table for restricting dissent of their publications in the upcoming election cycle by keeping bloggers too busy dodging ridiculous law suits.

    Call it a Dan Rather end around the first amendment to publish fabrications that cannot be challenged in a proper timeline.

    Rovin (a5d8b7)

  83. Couple of things.

    The web and blogs in particular are a word medium that almost requires cut and paste to get the concept across.

    If I told those same 39 words over a cellphone to a friend they would be hard to demand payment , even though just as much usage had occurred.

    If I ever reference them I provide the link if the rest of the story content is worth it for context, but otherwise I just cut and paste whatever is included in the snippet they provide in their own RSS feed any can subscribe to at their website.

    As to their charging but not offering any payment for stuff they pick up they have streets named for that called ONE WAY

    daytrader (ea6549)

  84. NOTICE TO AP: My quote price for “lifting” words is what ever the market price is for a barrel of oil. This price is not negotiable and will be charged to AP only. All others are free with credit recognition.

    DRILL NOW—-AND SAVE!

    Rovin (a5d8b7)

  85. Patterico,

    Re your 6:19 and 6:39 comments; your baseless accusation that I was acting in bad faith is deeply disappointing. To fill you in, I didn’t see your update when I wrote my comments and my post (I’m not sure they were written by then, but if they were, I didn’t see it). Second, after you pointed it out, I didn’t understand that one phrase in the middle of the short update as an acknowledgement that you had no rights at issue and that you did not actually think your rights had been violated. I had to read the update three or four times before I realized that you were even interpreting it that way. So I hope that responds to your concern: I was acting in good faith, trying to get to the truth of the matter. It’s puzzling and disappointing that you would imagine to the contrary.

    Orin Kerr (922218)

  86. Yes, so puzzling, and so sad. Especially after Orin Kerr’s comment at #26 did so much to illuminate the discussion. After that, how could anyone question his motivation?

    Then again, IANACL.

    fat tony (601b8d)

  87. Since it doesn’t make sense to lower yourself to AP’s level by sending them a bill for their use of content, you can take the high road instead.

    Offer any defendant of an AP suit an amicus brief (friend of the court) demonstrating their “Some animals are more equal than others” attitudes and policies. Then let AP management and their lawyers know that such briefs will be made available to anyone they pursue in court or in the media.

    Systematically track down every example of this type of behavior and have those bloggers do the same. If they suddenly have dozens or hundreds of amicus legal documents filed in their suits that clearly demonstrate that their suit is nothing more than “do as I say, not as I do” they’ll get their suits thrown out “with prejudice” pretty quick, either in the original court or in the first appeals court.

    Jes (43deb3)

  88. Orin,

    I’ll take your word that you are expressing genuine disappointment, and not shedding crocodile tears used as a backhanded jab.

    In that vein, let me express my disappointment that you missed the main point of my post — which is that the AP’s use was fair use, as blogger quotes so often are — in favor of a minor quibble over whose copyright was wasn’t infringed by their story.

    As well as my disappointment that you acted like my position is that the AP shouldn’t enforce valid legal rights, rather than a disagreement over what the scope of those rights are.

    And my disappointment that, rather than attempting to understand that point, you chose to portray me as dishonestly grandstanding.

    So there’s plenty of sadness and disappointment to go around.

    Patterico (cff355)

  89. “To fill you in, I didn’t see your update when I wrote my comments and my post (I’m not sure they were written by then, but if they were, I didn’t see it).”

    I’m sure they were. If you didn’t see them at the time, then your failure to note that in your original post is understandable. Your failure to update, not so much.

    Patterico (cff355)

  90. I still don’t know whether you two guys are serious about this or are pulling a Scalia vs. Stevens shtick on the rest of us.

    Do I understand correctly, at least, that Professor Kerr is not a copyright lawyer?

    nk (4bb2be)

  91. Heh.

    DRJ (8b9d41)

  92. drj — nice to see initials again.

    I’m limited in my participation here for a couple more days due to a recent surgical procedure, but seeing you back is great.

    wls (0ee728)

  93. wls, I believe that if ANYONE here could understand limited participation due to surgery/injury, it’s our DRJ… :)

    Scott Jacobs (d3a6ec)

  94. WLS,

    I’m sorry you are under the weather. I hope you feel better soon.

    DRJ (1a5f9b)

  95. I am sad and deeply disappointed to report that I am not a copyright lawyer, but I feel that I must note that, for the record, I am not a copyright lawyer.

    I really like Orin Kerr. He’s a brilliant fella. But he gets steeped in legalism, and forgets the overall spirit of things. It’s quite obvious that Patterico wasn’t seriously upset about his ‘rights’ being violated or not. He was pointing out that to AP, to you and me, to Orin as well, that fair use is exactly what it seems to be when Drudge Retort, Orin, Patterico, and AP take a few lines and expound on it.

    Not to ascribe any personal feelings to it, but I think Orin tends to get a little sensitive and so does Patterico, though it’s clear that if copyright law doesn’t permit what we all consider fair use, it should, and the AP is by far the greatest beneficiary of a liberal fair use policy. That’s all Patterico was saying. Why analyze ancillary points?

    Jem (4cdfb7)

  96. “Why analyze ancillary points?”

    Heresy to a lawyer, even one who’s not a copyright lawyer

    fat tony (e49cc4)

  97. Why analyze ancillary points?

    I have no problem with analyzing ancillary points — as long as you don’t completely lose sight of the big picture.

    Patterico (cb443b)

  98. Patterico, fair enough. I guess part of my point is that this isn’t really a law blog. Perhaps legal matters are discussed, but always in the greater context of what’s going on and what would be a good outcome. I don’t see a lot of the abstract debate that I find (and enjoy) on ‘blawgs’.

    There even seem to be a lot of lawyers on this site, and I think part of the attraction is that lawyers like to step back and stop talking about who should win in a court and talk about who should win in an ideal world.

    I kinda got the impression Orin wasn’t being as friendly as I’d expect him to be way up in post 20-something, and I expected you to get a little irritated with that. more silly than sad, to be honest. Kinda reminds me of an argument I saw between my Ks professor (a die hard academic) and my clinic ‘professor’ a hardened prosecutor of child abusers. There was an obvious tension from the deeply different uses and valuation for legal theories, and perhaps a bit of tension over who was doing God’s work.

    I should add that I didn’t realize Drudge Retort had lifted several articles wholesale and agreed it had violated fair use (according to Cox)… AP has a right to sue them and should win in court for that, and had to do something about Drudge Retort. But AP could have taken this opportunity to engage bloggers and have a frank discussion about what fair use is, so that everyone would be comfortable in normal blog behavior. Instead, they managed to inflame a bunch of people who already are very skeptical of the AP’s place in the world.

    Jem (4cdfb7)

  99. Patterico, fair enough. I guess part of my point is that this isn’t really a law blog. Perhaps legal matters are discussed, but always in the greater context of what’s going on and what would be a good outcome.

    That was the main conclusion I reached, as well. I was discussing the issues as legal issues, trying to make sure we were getting them right, when the spirit of things was more fun and less concerned with the legal details. I certainly felt out of step with the rest of the comment thread. Anyway, lesson learned.

    Oh, and I should confess, I actually know a lot of copyright law. I teach it in my computer crimes course. It is technically correct that I am not a copyright lawyer, though. ;-)

    Orin Kerr (01a58f)

  100. That was the main conclusion I reached, as well. I was discussing the issues as legal issues, trying to make sure we were getting them right, when the spirit of things was more fun and less concerned with the legal details. I certainly felt out of step with the rest of the comment thread. Anyway, lesson learned.

    Wrong lesson learned.

    This blog is not casually dismissive of legal details, as you appear to suggest. But thanks for the patronizing attitude.

    The detail I meant to focus on in this post was not who holds the copyright. It was the proper extent of fair use.

    In at least two cases, in my opinion, a blog (the Drudge Retort) engaged in clear fair use by quoting the AP in a very minimal fashion. Example here; read it. Yet the AP sent a takedown notice. Evidently the AP didn’t think it was fair use. They were wrong.

    Then, the AP engaged in clear fair use by quoting a blog. The quoting was far more extensive than in the example given. But neither the blog nor the owner of the copyright is going to threaten legal action.

    Irony.

    Irony that exists, I believe, regardless of who holds the copyright.

    Now, it’s fine for you to point out that Ms. Tiffany held the copyright. I never said otherwise, you might notice, but someone could read my original post as implying that. So when Michelle Malkin talked about the AP owing me money, I noted in an update that actually they might owe Ms. Tiffany money.

    I took copyright; I understand the basics. This isn’t Mr. Happy-Fun-Knows-Nothing-About-Law Blog.

    Then I read your comment asking who had written the quoted material. And at 8:00 I left a comment acknowledging that it was Ms. Tiffany, and pointing out that I had already put that in an update:

    Precisely zero. As I already noted in the update (which I wrote before I saw your comment), Marcy Tiffany wrote all the words in the question. So maybe the AP has to pay her instead.

    Now, it’s true, I was using a fun tone here, because I don’t really think the AP has to pay anybody. They engaged in fair use. It’s obvious.

    But I was pointing out to you that I had already updated to remove any implication that it was my words that had been quoted.

    You left a couple more comments, indicating that you were reading comments by me and Scott Jacobs, so I would have thought you had seen my comment noting my update.

    Then you went and posted something — 26 minutes after my comment noting my update, which was not inspired by your comment — that made it sound like I was claiming copyright in Ms. Tiffany’s words. You have never updated your post to note that I didn’t, and that I made it clear in an update that it was Ms. Tiffany’s words that were used.

    It degenerated from there.

    As I say, I have absolutely no problem with people discussing the details. Jem is wrong; this is a legal blog (at times), and the details matter.

    But so does the big picture. And this was obviously a post about what is fair use, and the issue of who owned the copyright was tangential.

    So it would have been nice for you to acknowledge that, instead of acting like you had destroyed the point of the post with some tangential quibble about who owned the copyright.

    It didn’t help when you accused me of dishonest grandstanding.

    It really didn’t.

    Patterico (cb443b)

  101. I think we’ve found someone on Levi’s wavelength.

    DRJ (1a5f9b)

  102. Patterico,

    I’m not being patronizing. I’m just trying to reconcile our differences by agreeing with commenter Jem that we have very different styles and approaches.

    Orin Kerr (01a58f)

  103. I think we’ve found someone on Levi’s wavelength.

    I think that’s the meanest I’ve ever seen DRJ be…

    Scott Jacobs (fa5e57)

  104. Scott – I think Orin is determined not to acknowledge the point of Patterico’s post, like Levi, and therefore continues to dissemble. DRJ’s comment was spot on.

    daleyrocks (d9ec17)

  105. I suspect she was dead-on also, but come on…

    Being likened to Levi? People have been shot for less… :)

    Note: Don’t shoot DRJ. I would become quite cross…

    Scott Jacobs (fa5e57)

  106. Daleyrocks,

    I apologize that I misunderstood the point of Patterico’s post. Patterico and I have very different senses of the scope of the fair use doctrine, and I think this framed our very different responses: I thought Patterico was trying to say that everyone should allow some copyright infringement, whereas Patterico thinks this is all fair use and therefore no rights of anyone’s have been infringed. Patterico, I apologize for misundertanding you.

    Orin Kerr (01a58f)

  107. I tend to enjoy Orin, even when he is being pedantic. I certainly do not get any inkling of him acting in bad faith in this matter.

    JD (75f5c3)

  108. For my two cents, Ms. Tiffany injected herself into a public controversy involving a public official and her statements are fair game (or fair use if you like).

    Analogizing, should Michelle America-Cut-Me-Off-In-Traffic Obama’s “whitey” video actually exist, I would hate to see a claim of copyright used to suppress its publication.

    nk (d86adb)

  109. Orin,

    As I have said, you are perfectly correct that the copyright in the part of my post that the AP quoted is held by Ms. Tiffany.

    Where you are wrong is in thinking that that fact undercuts the point of my post.

    The AP threatens people with copyright suits for material that is fair use. check out Jeff Jarvis’s “F U AP” post for an example.

    What’s more, they charge clients by the word without regard for whether any of those words are quotes where the copyright is technically held by another.

    And, they send takedown notices which allege that x number of words were copied — and include in *that* word count material for which the copyright is held by another.

    You would be well served by looking at the examples of the material that led to the takedown notices, together with the alleged infringement, at Cadenhead’s Workbench site. There’s plenty of infringing material. But the AP also complains that Cadenhead lifted things like the President’s prepared statements (no doubt written down before delivered) and a Senator’s quote from a radio address (no doubt recorded). AP did not hold the copyright in these materials, but still included those quotes as part of the infringing word count in the takedown notices.

    Getting the irony yet?

    Plus, and here’s the real point: the post Jarvis quotes is fair use. Just like the AP’s quotes of Ms. Tiffany’s e-mail were.

    If you really want to reconcile our disagreements and be conciliatory, please, don’t do so by treating my blog as one that glosses over fine legal distinctions. That is patronizing, whether you mean it that way or not.

    Instead, try understanding what my real point was — and why your quibble did not destroy that point.

    Patterico (57b77b)

  110. I was writing that comment when your last one came through.

    Thanks. Accepted.

    Obviously I could have been clearer in the post, so I may deserve part or all of the blame for the original misunderstanding.

    Also, I did snap at you a bit early on, and I apologize for that.

    Kumbaya.

    Patterico (f265b8)

  111. Nicely done Orin and Patterico. Now get a room.

    daleyrocks (d9ec17)

  112. I was going to say that. I really was. But I’m new here. Thanks for doing the heavy lifting, daleyrocks.

    fat tony (601b8d)

  113. FYI: Roger Cox has more on the final agreement between the AP and the Drudge Retort, including this excerpt (which I am reprinting because I think it’s fair use):

    Core Copyright Issue Remains Unresolved

    I hope the discussion to follow can focus on this key point because it was our sense last night that this is THE CORE ISSUE because AP did agree that excerpting and linking is generally acceptable which is what most bloggers do – just not the AP headline and lede.

    DRJ (8b9d41)


Powered by WordPress.

Page loaded in: 0.3948 secs.