AP makes the case that it doesn't get the Internet

LAST WEEK the Associated Press (AP) filed a federal lawsuit in New York against news aggregator site Moreover and its parent Verisign for quoting AP news headlines and brief leads with links to the full AP stories, which are available to the public on the AP's website as well as often on the websites of its media customers.

In doing so, AP pretends that it really doesn't understand how the Internet works, or the copyright doctrine of Fair Use. It probably does understand both, but filed its lawsuit anyway because the facts and the law are inconvenient for its old media business model of dead tree news.

AP provides original news content to print, broadcast and online media that subscribe to its services or buy stories, photos and video or audio clips as one-time purchases. It does not sell advertising itself on its website or elsewhere, most likely because that would place it in competition with its customers.

Reportedly Google News recently signed an agreement with the AP to link to AP stories internally rather than to any of AP's customers, probably because links from Google could drive so much traffic that they would disadvantage AP customers to which it didn't link. It also signed an agreement, possibly for similar reasons, with Agence France Presse (AFP) after AFP sued it for copyright infringement, but Google maintains that its quoting of the wire services' headlines and small snippets of stories is protected by the doctrine of Fair Use. That will likely be Moreover's defence too.

Section 107 of the US Copyright Act (Title 17, US Code) provides the doctrine of Fair Use as a limitation to copyright. A 1961 US Copyright Office summary of Fair Use exceptions provides examples of actions that courts have regarded as Fair Use, including "...summary of an... article, with brief quotations, in a news report;...."

That closely describes what news aggregation sites like Moreover do. Other well known news aggregation services such as Digg, Drudge, Google News, Slashdot, Techmeme, and Topix work much the same way. They provide links to news stories and other materials available elsewhere on the Internet. They don't link to items that aren't publicly accessible and they don't quote entire articles but just headlines and brief excerpts, usually the first sentence or even less. Furthermore, on the Internet the act of linking itself constitutes the acknowledgment of another site's copyright to the material linked, and that's such a well known and universally observed convention that it's a structural principle of the Internet.

AP wants to have its cake and eat it too. Its articles are openly available on its website, which it doesn't protect from web search engines by use of a robots.txt file defining its content as off-limits to them, yet it complains that Moreover searches its website. If it really wanted to protect its content, it could make its website available only to its media subscribers and registered users -- not allowing access by news aggregators -- and it could prevent web search engines from accessing its content. It has taken niether of these steps.

What the AP's lawsuit comes down to is that it doesn't like competition. It wants to go back to the pre-Internet world where it and the other wire services had a cozy oligopoly on news delivered to subscribing newspapers and broadcast media, themselves also in tightly knit oligopolies, for public dissemination. As Web Pro News summarizes it, the AP's lawsuit claims that:

"You can't use headlines of articles without permission from copyright holders.

"You can't use leads or short snippets of articles without permission from copyright holders.

"You can't run a business that sorts data available to anyone on the Internet like news aggregation sites do.

"You can't use marketing statements like "hot news" if you link to groups of AP articles.

"Basically, you can't run a news aggregation business that includes links to AP stories because that competes with AP's paid syndication model, according to AP."

Taking the AP's position to its absurdly logical conclusion would require the sources of all hypertext links to have prior permissions from the linked-to websites. This would be like requiring all authors of scholarly footnotes to get prior permissions from the publishers of the works footnoted, for hyperlinks are the Internet analogue of footnotes.

If universally enforced, such a regime would in effect shut down the Internet, which is essentially a web of links, destroying its value. It would also effectively demolish the concept of Fair Use in the online digital world.

Let's hope this case gets assigned to a federal judge who has a clue about the Internet. By filing this arrogant lawsuit, the Associated Press surely has made the case that it doesn't. µ

L'INQS
IT World
Web Pro News