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AP Pokes Baby in Eye with Subpoena

The AP says copyright is illegal… or at least, they do not respect the law… they say they do… but they aren’t. So the AP are wrong. And I’m trying to explain that to you.

From Associated Press

The Associated Press, following criticism from bloggers over an AP assertion of copyright, plans to meet this week with a bloggers’ group to help form guidelines under which AP news stories could be quoted online.

Basically the AP is claiming I (or anyone) can’t do what I just did. I just excerpted a copyrighted article of theirs for the purpose of referring to it (which I just did). This isn’t about their ownership of the copyright. Of course they own the copyright and they have every right to ask for reprint licenses from anyone who reprints their work.*

See that asterisk? It usually means there’s fine print coming. Fine print is a term of art referring to print in a contract that serves as a caveat or modifier on the overall content. It’s called fine print because it may appear in a smaller typeface to suggest less importance and may therefore be glossed over.

The asterisk here means that there are exceptions to the scope of copyright. One of these is alternative public licensing. This includes things like Creative Commons and GPL. But there are also fair use exceptions. Fair use comes into play as a result of the purpose of copyright.

Copyright is different from free speech in that it is not a fundamental, inalienable right. It is in fact a transferable right that is granted to the creator(s) of a work explicitly to promote science and art (at least in the United States of America). It is intended to have a limited temporal lifetime and only is meant to persist for a period of time to allow the author(s) to profit from their creations or discoveries, thus encouraging more work.

But hand in hand with copyright is this Fair Use Doctrine I’ve been mentioning. What is Fair Use? Fair use lays out exceptions to copyright whereby the work (or more usually a portion) may be copied without permission. It is founded on the same principles as copyright and intends to promote the same things that copyright stands to promote. There are limits to it, but they do not come by the word as the AP is trying to license their work.

For the purposes of addressing news in a blog post or other similar medium quoting a limited part of the copyrighted work is fair. If the AP doesn’t like the law, they have basically two options:

  1. Lobby to have the law changed
  2. Make their content accessible only by registration and as part of that registration require assent to provisions that restrict the reproduction of the work

The second choice is to say, “You can only access/view/read this work if you promise not to copy or otherwise reproduce, transmit, etc. etc. said work under penalties laid out below.” Of course, this would make their service useless.

The AP is aligning itself with the RIAA, MPAA, and BSA who all seem to be under some hopeless delusion about the future of creative content and copyright. Authors should be, will be, and are paid for their work. Organizations that were originally set up to aide authors in that endeavor are increasingly useless. The way forward is a system of micropayments for content. The sooner they implement such a system the more chance they have of sustaining their own existence beyond the next 5-10 years. The more they poke babies in the eyes with subpoenas, the less sympathy the public has for their position and the longer it will take for the content market to be as healthy and profitable as it should be.

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