You may have noticed the “boycott AP” ad on the right side. There’s a story there, and it’s one that’s moving very quickly.
It started last week when the administrator of the Drudge Retort (not Drudge “Report” – a liberal Drudge-looking countersite with some considerable traffic) received a message from lawyers from the Associated Press, demanding he remove excerpted pieces from AP reports from the site. The demand seemed unconnected to the amount of text, as the specific instances cited in the demand were as small as about 30 words at the lower end, and constituted typical “fair use” excerpting examples of the type routinely done by every political blog everywhere, big to small. It should also be mentioned that these excerpts were most often coming from the sites of AP subscribers – the news outlets that routinely reprint such wire reports on their own websites.
So word spread like wildfire through the listserv of the Liberal Blog Advertising Network, a blogads network made up of liberal bloggers from sites like dKos and TPM down to lil ol’ GMD and smaller. Although the Retort felt they had no choice financially but to comply, the group decided this was the beginning of something very bad, and that the AP was not likely to stop there. In fact, the reason for targeting the smaller sites was clearly to bully those who wouldn’t be in a position to defend themselves from the relative juggernaut that is the AP and create a new media cultural sea change under the radar screen through non-legal channels that would overwhelm even the bigger blogs. Given some of the quantum nature of intellectual property precedent, it stands to reason that if the blogosphere changed under sites like dKos, AP might have a better chance at prevailing in their attempt to fundamentally undermine “fair use” precedent at such time as they encountered an opponent with the means to challenge them in court – especially if that action took place in a venue friendly to them (read: a crappy judge).
Thus sprang up unAssociatedpress.net and the link to the right.
Almost immediately, the story got picked up in media such as the New York Times, where AP sounded contrite:
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.
…but later in the same piece, suggested that this contrition was only rhetorical:
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.
Still, the AP was immediately concerned about spin as – let’s face it – the right and left blogosphere assembled could make for a challenging foe. (Of course, there’s still the matter of the sheer volume of traffic to the AP and AP subscribers that this sort of fair use excerpting generates, but the AP is either blind to that fact, or contemptuous of it, by all appearances).
The AP’s next step, as stated in the NYT piece, was to contact the Media Bloggers Association, a nascent professional association of (presumably) traditional-media oriented bloggers. I say “presumably” because their website is extremely limited, providing sketchy information on what they do and who they serve, although it does seem that they will be opening themselves up to membership from the greater blogosphere soon. In any event, they have been helpful to bloggers in need – including in this case – so it seems unfair to draw negative conclusions about them.
The problem is, they are inviting negative conclusions as the AP is strongly suggesting that they are going into some sort of negotiation process with the MBA (as a blogosphere proxy) to craft some sort of understanding (and the MBA has been slow and clumsy in refuting this impression).
Also, AP has now upped the stakes with the posting of an online form, giving bloggers the opportunity to avoid legal action by paying to excerpt from any AP-penned piece. The payments start for as few as five words. Also, the fine print is offering as much as $1 million to those who report “piracy” as they have unilaterally chosen to define it.
Meanwhile, MBA point man Robert Cox has only added fuel to all concerns about their involvement by reacting explosively to relatively mild questioning of their purported liaison role in his own blog, quoted here:
Some kid named Ryan Tate has a snarky little post about our efforts to help a blogger facing a legal threat over at Gawker. He claims to have tried to find out about the MBA by reading our site and searching the web. Here’s a thought, kid. Pick up the phone and call us – our phone number and email is on the same site you claimed to have read.
Had he called he would have realized that the statement below describing the MBA is as uninformed as it is idiotic:
“a self-appointed representative of a hugely diverse group, and its legitimacy appears entirely self-assigned”
Hilarious! Why let actual knowledge of the MBA get in the way of a chance to sneer and snark at four years of efforts to protect the free speech rights of bloggers in hundreds of cases. It’s much more fun to disparage something you don’t understand and don’t care to understand.
Perhaps as a coincidence of timing, or perhaps because this oddly rabid attack was the last straw, the matter vaulted from the B and C list blogs right to the top with this post by Markos Moulitsas, which must have given great pause to the AP.
The dumbasses at the Media Bloggers Association, of course, are walking right into that meeting because they crave nothing more than creating the impression that they, you know, represent bloggers (they don’t). But anyone with an inkling of understanding of the law and principles at stake would know that the AP has no ground to stand on, and anything negotiated between them and the MBA will be ignored by the vast majority of bloggers anyway. If people haven’t noticed, we’re not the type of people that lets others do the talking for us. We do our own thing.
Lots of blogs are calling for boycotts of AP content. Not me. I’m going to keep using it. I will copy and paste as many words as I feel necessary to make my points and that I feel are within bounds of copyright law (and remember, I’ve got a JD and specialized in media law, so I know the rules pretty well). And I will keep doing so if I get an AP takedown notice (which I will make a big public show of ignoring). And then, either the AP — an organization famous for taking its members work without credit — will either back down and shut the hell up, or we’ll have a judge resolve the easiest question of law in the history of copyright jurisprudence.
The AP doesn’t get to negotiate copyright law. But now, perhaps, they’ll threaten someone who can afford to fight back, instead of cowardly going after small bloggers.
Cox has predictably seemed a lot less ready to go after Markos, as his response is a bit more measured, although still rather pointed:
A final note, there has been a lot said about the absurd notion that the MBA thinks it is representing “all bloggers” or that the AP is “negotiating” with the MBA. Ridiculous. We were approached for help by Rogers Cadenhead and, as we have done hundreds of times over the past four years, responded by offering him pro bono legal counsel and to set up a direct dialog with the plaintiff to see if the dialog could resolve the problem. We represent A BLOGGER and achieving an outcome acceptable to that blogger is our goal. Any discussion about how AP could better communicate its view of what is and is not acceptable is important and useful but secondary to the primary issue of getting to resolution for the blogger we agreed to help.
…and in fact, it does seem look like Cox is being presented as some sort of representative of the blogs, rather than presenting himself as one. The questions and concerns should stand as an object lesson for bloggers not to fly off the handle, as Cox’s initial response to being questioned naturally stoked the flames of concern, doing him no favors.
In the meantime, many of us in the bloggers group decided that a simple, affirmative, and firm statement was called for; one that would make it clear that Cox and the MBA are not our representatives in this process, and that, as far as our fundamnetal rights go, we see no question of compromise.
I dummied up some text which was modified by fellow blogger Liza Sabater at Culturekitchen.com to meet her concerns about the nature of the greater intellectual property morass, and the petition is now online at unAssociatedPress.net. It reads:
We the undersigned, representing publishers and writer across the blogosphere, wish to leave no doubt as to our opinion on the recent Associated Press move to unilaterally impose financial restrictions (under the threat of legal action) on the excerpting of AP material in online publications including weblogs.
While we certainly encourage dialogue between the AP and individual bloggers or organizations such as the Media Bloggers Association, it is clear that no such discussions should be misconstrues or misrepresented as constituting any sort of negotiation, mediation or brokering of a guidelines that would retreat from established “fair use” practices for such excerpting.
We believe the attempts to institute fees for excerpting contextual quotes of as few as six words, and any related attempts to coerce such a fundamental change through legal threat or intimidation, are in direct defiance of the spirit of quoting, linking, commenting, excerpting and other forms of free speech that have become part of the tradition of blogging and editorializing online.
The current fair use paradigm is a pillar of bloggers’ fundamental rights, and fundamental rights are not now, nor will they ever be, open to negotiation.
I encourage folks to check it out and sign it.
I also encourage folks to check out Liza’s post at CK for her perspective as someone who follows these issues closely.
Sorry I didn’t post on this sooner. I’ll try and keep you all up to date as things develop.
