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You may have heard that the Associated Press sent out DMCA takedown notices to a website for quoting excerpts from its news releases.

If it is determined that this is a no-no, this is going to mess up standard practice for a whole lot of news websites.

The typical response to this has been, “This is fair use, end of story. We have a constitutional right to copy-and-paste.”

I would beg to differ a bit, for two reasons:

1) Fair use? It is not so clear that having an item which consists merely of a quote from another source and a link constitutes “fair use.” Quotes from a piece as
part of another, larger piece making further comments, criticisms or parodies have long been considered a fair use. So if I quote a paragraph from an article on Compufool.com, then explain
why it is smart or stupid, that’s a fair use.

On the other hand, if I just quote a paragraph or two from Compufool and just link to it, there wouldn’t appear to be any fair use exception for commentary because there is no other commentary.

“Ah,” you may say. “But what if that quote and link was open to comment by other people? Wouldn’t that meet the “commentary” criteria?” That’s a very, very good question, and a brand new legal issue. I can make a very good legal argument either way. Which would win in court? I have no idea, and neither does anyone else, because this decision is complicated due to another legal doctrine called . . . .

2) Misappropriation of “hot news.” This is a no-no under unfair competition law in a number of U.S. states. The gist of this doctrine is that if an organization spends considerable time, effort and money gathering information, others are restricted for a period of time from freeloading off that information for their own purposes.

The AP spends a lot of money gathering news. It licenses that news to places like newspapers, radio and TV stations, as well as websites, who pay for that. The AP feels that if anybody can provide the gist of their articles for free, customers will be less willing to subscribe and pay. It can also be argued that websites which do this are essentially living off the commentary generated by the quote and link that might otherwise have gone to the linked site.

If you want a more detailed explanation of misappropriation, go here. This book review might be helpful, too. You’ll know a lot more about misappropriation, but I’m afraid you won’t have any better idea how applicable it is to this or other similiar situations.

It’s this legal doctrine which causes the real problem. If the AP complaint was just about exactly quoting them, one could just paraphrase rather than copy-and-paste and go on with business as usual. Misappropriation implies that “hot news” can’t be used at all while “hot” by unauthorized places.

The AP has since said it wants to think this issue out and define clear standards on this issue, but the AP is obviously not the U.S. Supreme Court, and Pandora’s Box has been opened. No matter what the AP does, somebody, somewhere is going to go down this road.

What is really needed is a change to U.S. copyright law saying whether or not this is a fair use, but don’t hold your breath. If this ends up in the legal system, that would take years to resolve.

For now, know that this situation is very murky legally, and anyone who tells you otherwise, for either side, is just cheerleading for that side.

Ed


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