Chipping Away At Fair Use: Judge Suggests AP Would Win Obama Hope Poster Case

from the fair-use-is-dying dept

While we're still not convinced you can trust the Associated Press's reporting on its own lawsuit with Shepard Fairey, the AP is now reporting that the judge in the case has indicated that the AP will almost certainly win, and that Fairey should give in and settle.

If you don't recall, the lawsuit is over Shepard Fairey's iconic Obama Hope poster. For over a year, no one knew what image it was based on, until a photojournalist pieced it together, and even got the photographer who took the original photograph to admit that he hadn't realized the poster was based on his photograph. That photographer, Mannie Garcia, even talked about how cool it was, and didn't seem upset by the issue at all, saying he hoped he might get a "signed litho" from Fairey. We wondered, at the time, if the AP, notoriously aggressive in its draconian interpretation on copyright law might get upset -- and, indeed, weeks later, the AP suddenly demanded money for the use of the photo: Of course, what made this ridiculous was that the AP had absolutely no idea that the poster was based on its own photo. It's difficult to think of a better definition of "transformative use" than that. Oh, and did we mention that the AP regularly used the poster as an image in its reporting? Fair use only goes one way according to the AP. Then, of course, to make matters more ridiculous, Mannie Garcia, the original photographer suddenly "forgot" how happy he was with the poster when it first came out and declared that he, too, wanted money.

It seemed like an open and shut case of fair use. The image was clearly transformative -- such that no one recognized where the original image came from for over a year, including both the original photographer and the company that claimed to hold the rights on it, despite both seeing the poster multiple times (and, in the case of the AP, using images of the poster in its own work). The idea that this poster harmed the market for the original image is laughable. The poster was also used for a non-profit political campaign, and Fairey donated any proceeds from the poster to charity. It practically screams fair use. This is what fair use was created to protect.

Ah, but then we found out that Fairey was an idiot. For no reason whatsoever, he went out and destroyed evidence in the case and lied to the court about what image he had used. It boggles the mind as to why he would do this. He had such a strong case, and in lying and destroying evidence he shot a huge hole through his credibility (and opened himself up to criminal liability).

Who knows what impact that actually had on the judge, but the fact that the judge is already claiming that the AP will clearly win this case in the end, suggests it certainly didn't help. And, because of that, we may end up with a ridiculous ruling on the books that an image that is about as fair use as you could possibly dream up is somehow not fair use.

The really amazing thing in all of this is that the AP itself doesn't seem to realize how much it relies on expansive fair use in its reporting. Even though the judge has more or less handicapped the case significantly in the AP's favor, the AP wants a clear ruling that the image is not fair use:

"Our primary objective is to make it clear to the world that The Associated Press is the copyright owner of that photograph and what he did was not fair use under copyright law," [AP lawyer] Dale Cendali said. "The Associated Press truly has been aggrieved here."

Wait, what?!? "Aggrieved"? How? Seriously. How has the AP lost anything here. This photo was a forgotten photo in the AP's vast archives before photojournalist Tom Gralish figured out where the original came from. Since then, however, that AP photo has received a ton of attention, all because of this silly stunt of a lawsuit. The only way in which the AP might actually be "aggrieved" is if it wins this abomination of copyright law, and stamps out one more clear case of fair use. Because it will almost certainly come back to haunt the AP. As a news publisher, it relies on expansive fair use to do its work. Taking that right away from others is an incredibly misguided move. That a judge has already made clear he's siding with the AP is troubling enough. That the AP still wants to push ahead is even worse.

Filed Under: copyright, fair use, obama poster, shepard fairey
Companies: associated press

AP Summarizes Other Journalists' Article; Isn't That What The AP Says Violates The Law?

from the that's-odd dept

Marcus Carab points us to a rather horrifying story about a family suing a funeral home after the funeral home put their grandmother's brain in a bag of personal effects and sent it to them. Yikes. But, ignore the story itself for a moment (if you can). What was interesting from our point of view was that the story was written by the Associated Press, and it's basically a rewrite of a story from The Albuquerque Journal. Here's how the AP points this out:

The Albuquerque Journal reported on the lawsuit in a copyright story published Wednesday.

Now, there are a few things odd about this. First... it's an odd phrase to use: "in a copyright story." Nearly all news stories are covered by copyright, so why even mention it?

But what I find even more amusing is that if you look at the AP report, it's basically just a quick blurb rewrite of the Albuquerque Journal story. It's only 125 words, and just summarizes what the other paper wrote. Why is that amusing? Because that's exactly what the Associated Press has been claiming bloggers unfairly do to it -- insisting that others simply rewriting its stories in short blurbs are violating the "hot news" doctrine. Apparently, that doesn't apply when the AP does it itself?

Filed Under: journalism, summaries
Companies: associated press

Google Stops Hosting AP News

from the isn't-this-a-good-thing-for-newspapers? dept

Peter Friedman points us to the news that Google has apparently quietly stopped hosting AP content on its site. You may recall that a little over two years ago (after much back and forth), Google began hosting AP content. This was licensed content that Google had paid for -- but that deal came about after the AP made some noise suggesting that Google's linking to content (with headlines and snippets) could be infringing. Rather than stand up to that (surprisingly, since it had a strong case), Google just did a licensing deal. What amazed me, at the time (and since), is that this didn't piss off AP members. Before this deal, Google would link directly to AP member websites who posted versions of AP stories, driving more traffic to those newspapers sites. After this deal, however, Google sent most of that traffic directly to its own site, and paid the AP directly for the license. The end result? The "members" of the AP got less traffic and fewer ad impressions. If I were an AP member I would be incredibly pissed off that the AP was directly competing with me and basically getting paid by Google to block traffic to my site.

So why has Google stopped posting new AP stories? Some think it may be Google calling the AP's bluff. That's because, despite having a deal that gives the AP lots of money for the right to post its content, the AP continues to make ridiculous claims that Google is somehow "stealing" its content. So, some suggest that Google pulled the content to show the AP what life is like without Google. There may be a more reasonable explanation, however. The original AP/Google deal expires towards the end of this month, and the original deal (stupidly, annoyingly, and against basic web accepted best practices) only allowed Google to host content for 30 days. After that, it disappears and people searching for that old content or following old links are simply told its gone (think of how much ad revenue the AP has lost because of that...). With the deal running out, Google knew it would then need to take down all AP content immediately, and it probably did not want to have content posted for less than 30 days -- so when it hit the 30 day mark, it just stopped posting content to avoid having stories that would go up and be taken down too rapidly.

Still, it makes you wonder how AP member papers are faring -- since they may now be getting more traffic from Google, because those AP stories showing up online from AP member papers will now get listed, once again, instead of just being hosted on Google itself.

Filed Under: journalism, licenses, news
Companies: associated press, google

Reuters Blogger Questions Reuters Editorial Actions: Transparency In Action

from the does-this-make-reuters-more-trustworthy-or-less? dept

Well, here's an interesting one. There were reports last week claiming that Reuters had spiked a story about hedge fund big shot Steven Cohen after Cohen complained to Reuters management. While Reuters has since strongly denied the charge, it is interesting to note (as sent in by reader JJ) that at least one Reuters blogger complained quite vocally about this decision. The full blog post, written on Reuter's Hedge World blog is well worth reading. Here's a brief snippet:

As a news organization, all we have connecting us to our audience is our credibility. When we make mistakes, when we miss the point, when we fail to publish in a timely manner--each of these creates a little crack in that credibility. Once enough cracks form over time, the credibility is eroded and ultimately broken apart. At that point it doesn't matter how many orange dots you have swirling around your TV commercial or how intelligent you claim your information is. Once that bond is broken you're screwed.

Because Reuters is my company, there's a big part of me that hopes this incident has been blown out of proportion; that the blogs don't have the whole story. I fear that's not the case, however. The way it looks now is positively scandalous. And as a journalist it makes me almost physically ill to think about it.

I hope someone above me addresses the situation publicly, because lord knows not addressing it ain't working. Right now this incident is relatively contained (although it was the most viewed post on ZeroHedge as of Tuesday). But by next week, this will be all over the place--Romanesko, Drudge. From there it could get real ugly real fast.

And herein, I hope, lies a lesson for whomever killed Matt Goldstein's Steve Cohen story: When you make a decision like that, under those circumstances, the back story will get out. And the fallout from that back story will always, always be worse than the fallout from the story itself.

What strikes me as most interesting about this is that this Reuters post is still up. Reuters did not pull it. It does have an update link at the top to another blog that posted Reuters' denial (not even a Reuters page... which is also noteworthy). While I'm still curious about the decision to spike the story, I have to admit that the fact that a Reuters blogger was allowed to post this blog seriously questioning the integrity of Reuters management (his own bosses) lends at least some more credibility to Reuters itself. This is strengthened by the fact that the blog post has remained up as well.

Compare this to the stories that went around when the Associated Press was announcing its silly and totally useless attempt to DRM the news. At the time, I heard from a few different AP reporters who thought it was a ridiculous idea that made the Associated Press look bad -- but they weren't allowed to say that publicly, and had no real outlet to do so. Reuters and the AP compete pretty directly in the newswire business, and every time I compare them to one another Reuters seems to come out ahead in recognizing where the world is heading. If it is true that Reuters spiked the Cohen story, that would be quite damning and could make me question trusting Reuters, but how it's handled this news so far, and how it's reacted to its own blogger talking about the story is impressive.

Filed Under: bloggers, pressure, reporters
Companies: associated press, reuters

If Google's Book Scanning Violates Copyright Law, What About The AP's Book Scanning?

from the hard-to-see-the-difference dept

Danny Sullivan does a great job calling out the hypocrisy of the Associated Press yet again. The organization, which has taken a very maximalist position on copyright, where fair use gets mostly ignored, apparently had no problem scanning Sarah Palin's entire book into a computer so that reporters could search it. Of course, this is no different than what Google is doing with its book scanning program (which, again, I still believe is a clear case of fair use). Yet, since the AP seems to take such a limited view on fair use (and has a habit of accusing Google of "stealing" content), it's amusing that it's now trying to defend its actions by claiming that it was legal because it was for the sake of journalism, and the scan wasn't for public consumption. Except, of course, Google's book scanning isn't for "public consumption" of the entire work either, but so people can do a search to find the relevant tidbit of info within the book. The AP's statement on the matter is laughable:

"The book, purchased several days ahead of its on-sale date by the AP, was scanned after the first spot stories moved on the wire from New York so that staffers in bureaus in Washington and Alaska with knowledge of various parts of Gov. Palin's life and political career could read those relevant sections the next day."

Yes, you can understand why they did it, and even why it seems reasonable. But that doesn't change the fact that it appears the AP made an unauthorized copy of the book, in violation of its own interpretation of copyright law. Funny how the law seems oh so different when it limits what you can do, than when it's about limiting what your competitors can do...

Filed Under: book scanning, copyright, fair use, going rogue, journalism, sarah palin
Companies: associated press, google

Chicago Tribune Tries An Experiment: Life Without The AP

from the who-needs-it? dept

Via Jeff Sonderman we find out that the Tribune Company wants to experiment next week and see how far it can get without content from the Associated Press. Last year, we noted that various newspapers were beginning to drop their AP membership as they were concerned about a new pricing structure, as well as the fact that the AP seemed unable to keep up with the modern world, and seemed increasingly less relevant. Worst of all, some of its moves actually appeared to position the non-profit organization as a competitor to its own member newspapers.

The Tribune was one of the larger publishers to indicate that it was sick of the AP, giving the organization two years notice (as required) that it didn't plan to renew its contract at the end of October, 2010. For this experiment, the Tribune wants to see how far it can get without AP material (though it will use it if there's nothing else). Still, the newspaper giant notes that it has plenty of other wire options: "Reuters, the Washington Post, New York Times, Agence France Presse, Cable News Network, Global Post, Bloomberg and McClatchy newspapers." Some of those are "new," but should make it clear to the AP that it doesn't quite have the monopoly it seems to think it has.

Filed Under: newspapers, wire stories
Companies: associated press, tribune company

YouTube Taking Down Public Domain Works?

from the make-it-stop dept

In the past couple of days I've received emails from two separate people who found that public domain material they put on YouTube was taken down to companies claiming ownership of the work. In both cases, the stories seem pretty ridiculous, and for all the complaining that copyright holders do about how awful it is that they need to "police" their own content on YouTube, it seems like those who are getting hurt are people who are putting up public domain material and getting shut down -- often with little recourse.

The first story comes to us from two self-described "hippies," Haint and Littia, who had put up a video showing some of Haint's works, and used as background music a song by a group called the Psalters, who put their entire album into the public domain so that anyone could do what they wanted with it -- such as using it for background music in a video. However, music licensing company Rumblefish, supposedly uploaded its catalog into YouTube's content ID system -- and apparently (and I'm still trying to figure out how, because no one seems to have a good explanation), the Psalters song is somehow in Rumblefish's catalog. Hence, YouTube took down the video. Apparently others have also been finding their perfectly legal and licensed content taken down thanks to Rumblefish as well, and were told that they needed to call and get Rumblefish's permission to get the content back up.

Haint and Littia note that they can't issue a counternotice, because Rumblefish never sent a DMCA notice which they can counter (Update: to clarify, as explained in the next sentence, they can dispute, but that's slightly different than countering the DMCA notice, and comes with its own problems). The "takedown" was triggered by the content ID match, which still makes things a bit tricky, since "disputing" such things could potentially lead to a lawsuit, so there's a bit of a chilling effect in disputing a content ID match. Poking a big company with a stick where they can turn around and file a lawsuit is a bit scary -- even if you know you're in the legal right.

While looking into that story, reader Stephen Pate sent over his own story of having his entire YouTube account suspended. He's not entirely sure why, but believes it has something to do with video he posted of the recent "crash on the moon." The video was taken directly from NASA's live broadcast, which NASA makes clear is not covered by copyright.

But... along came everyone's favorite news organization, the Associated Press, and claimed the video was their copyrighted material. Nice of them. Due to at least one other similar incident, Pate's entire account was shut down, and to make matters worse, this apparently happened at about the same time that YouTube switched emails to gmail logins, leading Google to claim that it can't match his email to the email of the account in question.

I'm sure Google and YouTube are trying their best, within the confines of copyright law and various lawsuits, to handle such situations, but it seems like things are a mess -- and more and more users are finding that even if they have what appears to be perfectly legal content, they may face takedowns and even loss of their entire account, with limited avenues for recourse.

Filed Under: content id, public domain, takedowns
Companies: associated press, google, rumblefish

AP Convinces Newspaper That Watermark Will Stop Mythical Evil Copiers

from the cut-and-paste? dept

Someone anonymous sent in an explanation by the Town News for its decision to use the Associated Press' hNews "watermarking" system which is the AP's silly and meaningless attempt to stop copying of AP content. The General Manager of Town News, Marc Wilson, explains why they signed up for the program using the totally unsubstantiated scare tactic, claiming that there are these awful content thieves out there stealing content:

Probably the biggest issue within the newspaper/Internet world is controlling the re-use of content posted on the World Wide Web.

Actually, I'd say that the biggest issue is figuring out a business model that works. If you're trying to control the use of content you put online, you're doing it wrong. And, oops, the hNews format doesn't do much to stop content reuse due to the magic of the world's worst copyright infringement tool: cut-and-paste.

Honestly, I'm still trying to figure out who believes this myth that copying news content is some massive problem. Sure, there are some spam sites out there, but they get no meaningful traffic. There are some claims that they cause search engine trouble, but that's overblown as well. Google and others are pretty good at sussing out where the content originated. But, according to Wilson, this is a huge problem:

But what they don't like the rise of the many companies that copy or scrape content off of newspaper Web sites -- and end up competing with the sites that originated the content.

Again, where are these mythical content copiers? There are spam sites, but they get no traffic and they go away pretty quickly. Besides, if you can't compete against a spam site scraping your content, you're definitely doing something wrong. If your brand and your community management is so weak that a spam site can compete with you, you don't deserve to be in business.

Filed Under: journalism, newspapers, watermarks
Companies: associated press, town news

The AP and News Corp DEMAND To Be Paid For Their Content

from the taking-aim-at-your-own-foot dept

At a media summit in Beijing this week, Associated Press CEO Tom Curley and News Corp CEO Rupert Murdoch declared that "It's time to demand payment for online use of content." This combative language rings ironic, considering the fact that without its content being published on "kleptomaniac" sites like Google News, not many people would even hear about this very article. As Weston Kosova at Newsweek astutely points out, if Rupert Murdoch truly wanted Google to stop "stealing" content, they could very easily stop that today with a simple robots.txt exclusion.

News organizations that are contemplating charging for access to their content might also want to stop calling their potential customers criminals -- that's really not great customer service. And after all, many sites, including Google, are already paying to license some of their content. So, instead of accusing customers of not paying enough, offering better reasons to buy would probably get more sites to pay up. But, that's hard, so jumping up and down and demanding payment in a juvenile manner is much easier.

However, perhaps this is all merely negotiation brinksmanship -- threatening to charge for access to their free content to see if anyone cares enough to pay. The problem is, if the search engines call their bluff and remove their content from their services, then the news organizations actually risk losing much more. As we've pointed out time and time again, news organizations like the AP have been continuing down this road of implosion, where they clearly don't seem to understand the nature of their own business. For example, the AP's obsession with creating a "news registry" that would enable the AP to track down "unlicensed" uses of its content hints at this fundamental misunderstanding. In his speech to the summit, Tom Curley said:

"Crowd-sourcing web services such as Wikipedia, YouTube and Facebook have become preferred consumer destinations for breaking news, displacing Web sites of traditional news publishers.

To turn the tide, AP is creating a News Registry -- a rights management and tracking system."

Really? The AP's response to people linking to and discussing AP articles is to go after sites for money? I am waiting to see which news organization will be the first to go after Twitter for payment for news tweets. Instead of focusing on how to demand payment for the distribution of an infinite good, news organizations should recognize the new opportunities afforded by the free distribution of their content and focus on how to build a business off their scarce goods.

Filed Under: business models, entitlement, journalism, rupert murdoch, tom curley
Companies: associated press, google, news corp.

AP Wants To Charge For Scoops

from the not-quite-the-crystal-ball dept

The Associated Press is considering charging an extra fee for early access to its stories. The AP's Tom Curley believes that news organizations like Yahoo, Google and Microsoft, would be willing to pay a premium for a 20-30 minute head start on scoops. Now, lest some of you compare this product with Techdirt's own Crystal Ball offering, there is a key difference. AP's product depends on the timeliness of its stories, whereas Techdirt's stories are more focused on analysis -- we do not focus on breaking stories, but when we do, we do not hold them back for the Crystal Ball subscribers to view them. In any case, while this may sound like an enlightened idea for the AP, I'm not really sure it makes much sense. Currently, all of AP's licensees get all of the scoops at the same time, off the same wire. With this system, what the AP is doing is effectively weakening that existing product, and then creating a "new" product that, when the dust settles, is really what most of the customers were getting in the first place. It's not that the scoops are released 20-30 minutes sooner, but rather, if you don't pay the premium, you get the stories you would normally get later. Now, there's nothing wrong with this model, for example, stock quote services have long been able to charge more for real-time information, but for the AP to market this as a premium service seems like disingenuous marketing. Furthermore, given the AP's track record for trying to claim ownership over the news that it reports (like creating a DRM system for news), what happens when the now-hamstrung AP wire is scooped by a reporter who was tipped off by AP's own product?

Filed Under: business models, delays, journalism, news, scoops
Companies: associated press