COPYCENSE

Last week, the Associated Press issued several DMCA takedown notices on a Web site called Workbench, claiming the site had infringed its copyright when it posted ledes and titles from a handful of AP stories. The Associated Press, which is a cooperative owned by more than 1,000 newspapers, which contribute content to the collective and use content from it. I am intimately familiar with the AP and how it works, and think that the cooperative has evolved into an influential, primary news organization because so many newspapers have abandoned original reporting in so many areas due to real or perceived financial pressures.

(Next time you read your local newspaper, take notice of how many stories are wire service stories from AP, Reuters, Agence France Presse, or a similar agency.)

AP’s tactics, however, raise some interesting issues about copyright’s use and applicability in a networked information environment, where virtually every action invokes one of the six exclusive rights.

I address these issues in no particular order.

1. The DMCA Takedown Process: I’ll address both sides of the same coin. The first side is an opinion many hold: “The DMCA takedown process is flawed and must be amended.” The safe harbor provisions under Section 512 allow a “service provider” to avoid infringement liability so long as the “service provider” removes or disables access to the allegedly infringing content upon being served with the takedown notice. As Wendy Seltzer illustrated last year, the takedown provisions do not provide for any assessment of fair use (or any other copyright exception), and provide weak safeguards against abuse. (For example, retailers like WalMart abuse the process every Thanksgiving holiday by issuing takedown notices for holiday sales information that, by any reasonable measure, is factual — and therefore not subject to copyright protection.)

The flip side is equally compelling, yet not quite as popular: “Service providers should not roll over reflexively and accept such DMCA notices without investigation.” Granted, there are costs associated to training staff to handle these notices properly, but those are fixed costs that come with this particular business. An ISP would have to train its staff to handle any sort of legal notice, including a subpoena, so DMCA notification training should not be an issue.

(See Section 512(k)(1) for a definition of “service provider.”)

Further, I see nothing in the takedown procedures that requires any sort of investigation into the paper’s validity or credence, and a strict reading of the statute may prohibit such an investigation … so long as the “service provider” is satisfied simply to comply with the DMCA and punt on any extralegal responsibility it may have to its customers. My reading of this tortuously long statute indicates that it “service providers” are required to expeditiously remove, or disable access to allegedly infringing material in order to qualify for the “safe harbor.” Absent qualifying for the safe harbor, I see nothing that requires “service providers” to expeditiously remove, or disable access to allegedly infringing material.

What is the worst that could happen if a “service provider” decided to question the takedown process, and in the process disqualify itself for the “safe harbor”? It gets sued for copyright infringement? Surely, no person or entity wants to get sued, but is it too much for ISPs to show a little spine on this issue, especially if the spine showing results in bad press for the copyright owners? (Oddly, bad press for the copyright owners may actually help keep the issue out of the courts. And bad press may be the only effective tactic left in stemming the inexorable march toward narrower interpretations of copyright exceptions that don’t require compensation or permission.)

Besides, an ISP recently showed some spine and objected to some of the DMCA’s provisions: Verizon, for example, litigated the DMCA subpoena provisions … and actually won.

2. The Trial Balloon: Once The New York Times got hold of the story, the Associated Press had retreated from its initial, aggressive actions, calling them “heavy-handed.” The implication is that an overzealous legal department ran amuck without consulting the business side of the building.

This is garbage. The AP knew exactly what it was doing, and the legal department had full sanction from (and was in consultation with) the business side of the building. In fact, I’d go so far as to say that AP did not consider their actions to be “heavy-handed” until the Times inquired about this issue. (It is significant that the Times is a cooperative owner of AP, and also has increased its implementation of blogs in the newsroom and on its Web site.)

This is not an accident at all. The AP wanted to see how aggressive it could get, and for how long, before its actions were (a) noticed by business partners (or at least entities or executives it respects), and (b) questioned or criticized by those partners. AP will use this incident (and the reaction) in the future as a barometer for how aggressive it can be in proscribing uses of its content that are not explicitly licensed. Next, what we’ll likely see is a new AP content license that is promoted specifically for bloggers. Part of the market research for such an initiative, however, is occurring now, with this shot across the bow.

The concept of a content license for bloggers is neither new, nor necessarily negative. But that license will be positioned as an insurance policy: buy the license and we won’t sue; but if you don’t buy the license, then we make no guarantees. It is the proverbial Corleonic proposition.

Implicit in the “no guarantee” part of the equation is AP’s behavior in this situation. When this issue arises in the future, the AP’s rationale will be that while there were no (or fewer) licensing options when AP approached Workbench in June 2008, now (whenever that time in the future is) you have options … in the form of the license. The options won’t be “fair use or some other exception,” “fair use or not fair use,” or even “fair use or license,” but instead “license or risk getting sued.”

I think AP is beta testing future business initiatives (and perhaps stalling for time to get its initiatives together) while using allegations of copyright infringement and the hammer of a lawsuit. This is not the first time a large copyright portfolio has done this: I think the RIAA has done this for years, for example. I think the three academic publishers who sued Georgia State University for alleged infringement via electronic reserves are doing exactly the same thing, under the guise of “protecting authors” and maintaining incentives for future authors to publish.

The problem I see with this tactic is that it narrows attempts to render irrelevant any discussion of the bevy of copyright exceptions that are allowed under the law. Muting discussion of exceptions works consistently with promoting licensing as a solution to avoiding copyright infringement. “Don’t worry about copyright; it’s too complicated. Buy the license and be secure in knowing that you (or your organization) are in compliance,” goes the pitch. What the pitch really is saying though, is “Pay for everything without referring to the copyright exceptions that, under certain circumstances, will allow parties to use, access, reproduce, distribute, or remix portions of protected works without having to ask for permission and without having to pay.” That’s not a solution; that’s a surrender.

Dastardly? Perhaps. Cynical? Maybe. Beyond the realm of possibility in an overheated copyright environment? Absolutely not.

3. Fair Use & the Inverted Pyramid: In the same Times story, writer Saul Hansell reported the following:

Even if The A.P. sets standards, bloggers could choose to use more content than its standards permit, and then The A.P. would have to decide whether to take legal action against them. One important legal test of whether an excerpt exceeds fair use is if it causes financial harm to the copyright owner.

“The principal question is whether the excerpt is a substitute for the story, or some established adaptation of the story,” said Timothy Wu, a professor at the Columbia Law School. Mr. Wu said that the case is not clear-cut, but he believes that The A.P. is likely to lose a court case to assert a claim on that issue.

“It’s hard to see how the Drudge Retort ‘first few lines’ is a substitute for the story,” Mr. Wu said.

Associated Press, obviously, thinks differently. In a June 3 letter to Rogers Cadenhead, Workbench’s editor, the news cooperative’s Intellectual Property Governance Coordinator wrote the following:

… you purport that the Drudge Retort’s users reproduce and display AP headlines and leads under a fair use defense. Please note that contrary to your assertion, AP considers that the Drudge Retort users’ use of AP content does not fall within the parameters of fair use. The use is not fair use simply because the work copied happened to be a news article and that the use is of the headline and the first few sentences only. This is a misunderstanding of the doctrine of “fair use.” AP considers taking the headline and lede of a story without a proper license to be an infringement of its copyrights, and additionally constitutes “hot news” misappropriation.

(By the way, isn’t “Intellectual Property Governance Coordinator” a great title? I would have settled for “IP Majordomo,” but Intellectual Property Governance Coordinator sounds magisterial.)

There is a practical problem with Professor Wu’s statement, and it is connected to Associated Press’s interpretation of fair use: journalists write news stories using a technique called the inverted pyramid. In the inverted pyramid form of writing, a news story’s most substantive, important, and informative information appears near the top of the article, while contextual information falls further down into later paragraphs. Essentially, the inverted pyramid form of writing requires news stories to answer the most important questions — who, what, when, where, how (and set the tone for answering “why”) — within the first three paragraphs. In the tightest news writing, a reader should be able to answer the most important questions in the first 3 to 5 sentences, which include the “lede” (or lead).

The rationale behind the technique is quite sensible: it allows readers with little time a way to be informed quickly, particularly if one is scanning the paper. The technique, which has been around and used for centuries, represents a CNN-style of reporting that existed before Ted Turner even was born.

From a legal perspective, though, one could argue reasonably that the inverted pyramid technique, combined with contemporary blogging practices, has an effect on fair use. If you look at the four-plus factor test in Section 107 and compare it to how news writers construct their stories using the inverted pyramid, the first 3 to 5 lines of a news story essentially constitute factors three (“amount and substantiality of the portion used in relation to the copyrighted work as a whole”) and four (“the effect of the use upon the potential market for or value of the copyrighted work”). Said another way, the inverted paragraph form of writing — which includes “the first few lines of a story” that Wu claims could not be a substitute for a story — is a substitute for the story. That what it always has been designed to be. By extension, if online writers are using the first few lines of a news story, and news stories (almost universally) are written in the inverted pyramid format, then online writers that use those lines are substituting for the news story.

Let me take it a step further. If findings for or against fair use are based upon a theory of commercial substitution, then it seems that every use of a news story’s first few lines is, a commercial substitution that finds against fair use. Fair use should not be winnowed down exclusively to commercial substitution, but given Harper & Row v. Nation Enterprises, 471 U.S. 539, 566 (1985) (“[the fourth factor of Section 107] is undoubtedly the single most important element of fair use”) and the fair use’ otherwise vague and inaccessible nature, most folks will use commercial substitution as the clearest guideline in an otherwise foggy doctrine. (This is especially true of copyright portfolio owners, because they can argue that virtually any invocation of the exclusive rights rights is (or may be) a commercial substitution, and therefore, beyond the scope of fair use.)

To be fair, William Patry has called “erroneous” the Harper & Row court’s assertion that the fourth factor is “undoubtedly the single most important factor,” but I do not know of any comparable holding that explicitly overturns that analysis, or any trend that suggests federal courts are no longer relying on it.

For these reasons, I see Associated Press’ actions last week as having long-lasting commercial, political, and journalistic importance.

Update (June 23, 2008): In a Friday, June 20 posting to The New York Times’ Bits blog, writer Saul Hansell reported that Associated Press and Workbench editor Roger Cadenhead “consider the matter closed” as of Thursday, June 19. Hansell’s post links to Cadenhead’s reportage about the dispute’s end. Cadenhead’s post, in turn, discusses AP’s use of tracking technologies from a company called Attributor, a Redwood City, Calif. company that has had AP as a client since May 2007. (Interestingly, Cadenhead notes, Attributor posted a blog earlier this year that advised its clients to send a link request instead of a DMCA takedown notice.)

Cadenhead also notes that AP already offers fee-based services whereby customers pay for headlines and lede paragraphs. (We presume Cadenhead is referring to AP Exchange or AP Digital.)

Additionally, Cadenhead also mentioned the willingness of parties like the Electronic Frontier Foundation and Public Knowledge to assist his legal fight. Since both organizations seem to choose their issues and legal fights with extreme care, it is fair to say both parties were as interested in the potential for positive publicity as the legal issues.

Finally, Hansell’s report surmises what occurred between AP’s issuance takedown notice of the takedown notices, and the apparent detente late last week. In the end, none of the thorny legal issues got resolved and no one seems to want to discuss the key issues on the record. The veil of silence that surrounds the “settlement” reinforces our conviction that AP was using this issue as a trial balloon, both to gauge public opinion and to use as a test case for future business initiatives.

Copycense™: Incisive IP.™