The AP’s fair use battle

This post follows from a couple links I posted on Facebook recently. There is a conflict between an old model and a new one. The giants of media are on one side, and “blogs” are on the other. Similar to most conflicts about copyright, there is a division between the old guard and people who use new models that threaten their business.

Here the first link that I’ve been talking about: Murdoch says news aggregators like Google and Yahoo are illegally using his content, excerpting news stories to populate their news pages without negotiating a license. Some media companies realize that disallowing links mean they are seen by fewer eyeballs. Traditional media has long struggled to understand how the Internet works, and in this case News Corp and the AP are fighting against linking, which is how the Internet works to spread content. URLs (uniform resource locators) exist so that content can be spread. This is “the way things are,” and I think the excerpting and linking are firmly fair use, although courts have not made a clear distinction on the extent of this right.

Now another developing story: The AP has made a copyright claim that Shepard Fairey, the artist who created the iconic red, white, and blue Obama HOPE poster, developed the image through unauthorized use of a photo that the AP owns the license to. (The photographer who actually took the picture was thrilled to find out it was the source for the well-known poster, but the AP owns the licensing rights.) The AP claims the poster is an unauthorized transformative use of their proprietary content. I would argue that this is the way the world works. Content creators borrow substantive content that exists in the world and churn out new content.

The complication in the AP’s suit against Shepard Fairey is that, because transformative work like this is the way the world works, there are numerous examples of the AP doing essentially the same thing, selling licenses to photos that are substantially made up of intellectual content produced by others. And this is a good thing. The AP provides a valuable resource to newspapers and other media outlets by allowing them to access photos and news stories from around the world.

Shepard Fairey has responded to the AP’s copyright claim with a claim of his own, saying that the AP has no right to prevent others from enjoying meaningful fair use rights of proprietary content.

As I have stated before I am fighting the AP to protect the rights of all artists but I do want to emphasize one other important point. I’m not accusing the AP of infringing anybody’s rights. I’m saying everyone should have the same broad rights of fair use and free expression, and that includes The AP.

From Fairey’s lawyers’ response to the AP:

Defendant’s counterclaims are barred in whole or in part by the equitable doctrine of unclean hands. Specifically, The AP claims copyright ownership in, and makes commercial use of, many photographs that consist almost entirely of copyrighted artwork of Fairey and other artists without permission. Copies of these photographs are offered for sale and licensed for use by The AP through its image licensing database
available at http://www.apimages.com .

I am somewhat excited that these media players are trying to fight this battle already, because I think that the inevitable fair use decision that will come out of this will move the balance in the public’s favor. As is clear by the AP’s use of others’ intellectual content in their image licensing database, reusing content is the way the world works. Nobody who publishes content is clean in this matter. Reuse is so embedded in our conversations, in-person and otherwise, that it is often invisible to the conversants. I don’t mean that people can’t tell that you are quoting a line from Futurama, but that the fact that you are reusing existing content is so normal that it is not the important part. What we care about is that the joke we may have heard before has a funny application to whatever we were talking about right before you said that.

For the vast majority of reuses, no money is made, so they fly under the radar. In the stream of constant reuse of content, only a few examples make their way into the courts, and the courts declare that unauthorized reuse of works under copyright is wrong… Profits are garnished, and statutory damages are assessed, because a standard of fair use that protects everyday reuse of content has not been established. Of course not every use of copyrighted content could be justified as fair (some are more exploitive than creative), but the distinction hardly exists in the courts today. Fair use asks to be explored.

The Internet will change things. (It already has, but changes in society sometimes take a while to percolate into legal decisions.) The Futurama line you may have used on the street would be passed over, but if you republish Fox’s content online in one of the many formats that the Internet allows, your expression might be curtailed by a DMCA takedown notice. But a thousand other reuses of jokes originally seen on Fox TV will pop up the next day. The Internet makes it obvious that communication involves a lot of linking and reposting existing content, and that this communication is critical to democracy.

I have a feeling that the AP and Fox are making these copyright claims to protect the positions of the big players as the only arbiters of the news when this dynamic is already breaking down. The conversations among the little people are important now too. We appreciate the contributions of mainstream reporters and photographers around the world that write content for the big players, but current events are not solely theirs to discuss. Excerpting and linking to news stories are critical components of our democracy, just as transformative uses of existing content is a critical component of communication in general.

The little players know that linking makes them relevant. Blogs allow trackbacks intentionally. The hippest media try to make it possible to share their content, and license it so that others can legally reuse it.