Summary: In what may be a variation on the model of the RIAA campaign against illegal music downloaders, AP has launched an assault on the “free” use of news on the Internet–not just their feeds but, apparently headline links. A part of this assault is a suit in US district court in New York against All Headline News Corp., a news aggregator. That court just denied a motion to dismiss the suit, applying the principle of “hot news” to online news for the first time. One point for AP. That decision and the legal theories underpinning the “assault” are connected. Add another point for AP. (Please note that we have posted this piece in other of our blogs–digitaldumonde.worpess.com, globalartlaw.wordpress.com and globalstrategic.wordpress.com.)
AP recently announced that it is fed up with the misuse of its news feeds-an understandable lament given that its customers (newspapers) own AP. You may be hearing echoes of the famous move, Network, and they are more than echoes. At the annual AP board meeting, the chairman, Dean Singleton said “We are mad as hell and are not going to take it anymore.”
We take no position on whether this is a good or bad thing. Many, many talking heads (“typing hands” for a new name for bloggers?) are decrying what they see as a frontal assault on the doctrine of “fair use.” We do not see it that way. We do see it as an opportunity to clarify not only the application of that doctrine online but also a way to discuss, and eventually clarify, the appropriate business models for online news and information.
A Few Details
They plan on policing the misuse of copyrighted material. How is a matter of speculation. AP has signed up with Attributor, a company with technology that can track use of digital information (stories and photos) that have a digital “fingerprint.” Armed with that information, AP could demand some portion of ad revenues from sites using the offending materials in a manner beyond the limits of the “fair use” doctrine. (You heard it here first, by the way. We wrote several weeks ago that demands by newspapers for such revenue are not unreasonable as a move to increase revenues for online newspapers.)
Fair Use May Change
We get it. We might not support the approach (and we might also support it) but fair use has been strained to, if not beyond, the limits of credulity to justify online use of information created by others, for which the copyrights are also owned by those others. In these situations-where a legal doctrine lags too far behind market development-the doctrine becomes the focus of legal assaults and the consequences are a changed doctrine. Regrettably, the public debate on this matter has begun to take on ideological “hate” language that relies more on ad hominem attacks than reasoned analysis and argument (in the “rhetoric” sense of that word).
The First Salvo: All Headline News.
AP is going after All Headline News, a news aggregator. They have been accused of stripping attribution (including copyright notice) from AP articles and re-publishing them without any changes whatsoever. Again, we take no position on what they are doing. AHS filed a motion to dismiss, which was denied by the district court in an interesting opinion.
Why? Because the court anchored its action to the “hot news” doctrine from 1918 (an opinion from a case that arose from the start of the business of the real-life model of our favorite film character, Citizen Kane). There, news that is so “hot” (like breaking news) becomes the quasi-property of the people creating the news stories in the first place. Whatever your opinions on the doctrine, this is the first time that “hot news” has been applied to the online news world.
So What?
We discern a certain theoretical strategy behind AP’s approach, something that seems to have escaped notice with all the screaming against AP now underway. In a sense, hot news can become something of an argument against a “fair use” defense. That is not quite it-but we will leave that sentence in, anyway. Rather, finding the applicability of the doctrine, the court gave AP the basis for arguing “misappropriation.” That can become the basis of a legal theory that differs from mere infringement. In a simple manner, it can be explained that the word is the civil law equivalent of “theft” in the criminal context. Putting aside discussions of legal theories, strategies and tactics, the opening into this legal argument carries with it the potential of using “freighted” language to use in the PR battles that AP faces and will continue to face.
Information Wants to Be Free??
That rallying cry has energized much of the discourse that coincides with the explosive growth of all things digital. Whether something as diffuse as “information” can be called something singular in that context is one thing; whether it can “want” anything is another. But that’s not our point.
There might be a tectonic shift underway (OK, warning: Now we’re getting really speculative). Most obviously, the collapse of the newspaper industry alarmed people (OK, primarily the pundits and shareholders and employees but you get the point) enough for alternatives to “free” to be openly discussed as new (or recycled) business models. At an even more abstract level, the conservative interpretation of the “free” market is now in retreat (rightly or wrongly is not our point), and so also might other ideological positions that tend toward a libertarian bent.
We don’t know. But we do know that AP has a fight ahead of it-and it is a good fight. The outcome might not be what AP wants–or what anybody wants–but it will be a changed world because of it.
Summary: If you provide content to, or receive content from, newspapers or you advise newspapers, new strategies (deployed by European newspapers) raise some questions about controlling the use of the content and your revenue. Re-read the agreements.
We just posted some (good) news about what look like effective strategies for newspapers in Europe to survive (see digitaldumonde.wordpress.com, for example). In a nutshell, they have revived two old concepts–repurposing content and offering premium services. The premium services are not necessarily news or other content but, for example, a weight-loss club.
That got us to thinking about content licenses. Too often, we see that the grant of license is either too narrow for the newspaper to use the content on other platforms or it is too broad to provide adequate protection to the content provider. And, if you are providing the content, it is possible that derivative works are not effectively prohibited.
Narrowness occurs because the agreement was often drafted only with a website in mind. The problem of breadth occurs because the website is not sufficiently defined (narrowed) to mean only one website. Another problem may be that there is no limit on the number of places or times content can be posted.
The problem arises in the revenue section, too. Often it is driven by the definition of revenue–which is limited to revenue generated from the display on a website. Thus, it might be silent as to other platforms.
And The Point?
It is a simple fix by specifying the platforms, the number of places and times content can be used and a better-drafted definition of revenue.
As for the premium services, things are a little more difficult. A content provider could argue for a bit of that revenue if the user leaves from the content providers content (say, a story) and goes to the premium se3rvice (e.g., the weight-loss part of the site on another page). Bit of a stretch but worth discussing.
And, of course, one can–and should–always press for access to the user data, even where they go after the content. No, not the amount of weight lost, but simple use.
Perhaps you can get a discount on the weight-loss club membership.
Global General Counsel 