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The fair use debate

Written by Tyme White on June 16, 2008

This weekend TechDirt published an article about Associated Press (AP) sending Drudge Retort, a site that mocks Drudge Report, seven DMCA requests siting that the instances they specified in their DMCA requests were not fair use. In Cadenhead’s article he points out that one of the AP articles uses 18 words, a quote from Hillary Clinton, and links back to the originating article. Looking at Drudge Retort I found instances where almost 1/3 of the original article was used (non-AP content).

I was talking to someone online and I mentioned this situation. Their response was that they didn’t use AP articles so there was no need for concern. It didn’t cross their mind that Yahoo articles might be an AP article. One of the DMCA requests was for this article syndicated via Yahoo. This could cause a blurred sense of perception. A writer or blogger could be thinking “Yahoo is safe” when that doesn’t seem to be the case, does it? It’s not Yahoo’s content, it’s AP’s.

The bottom line is that there seems to be a disconnect on what is considered fair use. Content creators have different requirements on how their content should be used. Some writers do not mind if their articles are redistributed in full and on the flip side, others prefer permission be granted for any use but cannot get around fair use.

There are quite a few people talking about this. One cannot deny it does bring up the question, as writers, how our content should be used and just as important: how much outside content should be used on our sites.

Do you have clear policies in place on your site that lets people know how your content can be used?

  1. Brendan Says:

    Ahh, fair use, that good ‘ol American loophole that few other countries actually have. And the question “how much is ok?” is a horribly vague one at best.

    Yahoo! will, like Google and Microsoft, have various agreements in place where ‘the press’ is concerned – just because an article shows up (syndicated) on Yahoo, doesn’t mean it’s an automatic free-for-all and re-publishing is ok.

    It’s a simple case of engaging brain before publishing – “am I about to republish something in-part or in full that has a specified copyright?” if that is the case, then one should either gain permission or alternatively simply link to it, providing one’s own words instead.

    This is 9rules – I want to read what the author has to say, not a reprint of what AP or Reuters are saying. :)

  2. Tyme White Says:

    When we add members that’s one of the things we look for – how much third party content is used. What makes this interesting is that one of the AP issues in question was a quote – 18 words from Hillary Clinton. Many high quality articles are written based on a response to a quote and it is common to include the quote in the article.

    There is also that slippery slope of taking the risk of summarizing someone and getting it wrong. Another point for another day. :)

  3. Joe Lencioni Says:

    Do you have clear policies in place on your site that lets people know how your content can be used?

    Good question, and it’s an important one for every content creator to think about.

    Personally, all of my content is released under a Creative Commons license with specific attribution requirements specified. So far I haven’t really had any major problems that I’ve noticed.

  4. Tammy Takahashi Says:

    I also have a creative commons license on my blog. So far, the only time I’ve seen my content reprinted, is on blogs that aggregate other people’s blog material simply as a way to make money from google ads. I’m not sure what to do about that except let their ISP know, which hasn’t always worked.

  5. Brendan Says:

    > What makes this interesting is that one of the AP issues in question was a quote – 18 words from Hillary Clinton.

    I think you’ll find copyright law (in general) doesn’t take context into account. If the actual item in question is in the public domain, then the AP will have issues actually claiming copyright.

    However, if you take a direct quote from an AP piece, you’re just asking for trouble. Providing one’s own account of a given event does not necessarily mean one is going to provide bias.

    Remembering of course most people do not react well to having content ripped and re-printed – quoting vast swathes of AP or Reuter content is no different, only the ramifications are that they (typically) have a much bigger legal budget. :)

    I’m not arguing that free speech is wrong here Tyme, just that it is often used as an ‘excuse’ to raid copyrighted content.

    That’s not cool and is a bad habit to form.

  6. Tyme White Says:

    @Tammy – if they are using the entire article you could be a copyright notice at the bottom of the RSS feed. I know bloggers that had success with reduced scraping depending on the message at the bottom of the feed.

    @Joe – I used to CC but I changed my mind. The licensing is a bit ambiguous to me. In truth I don’t monitor it much though.

    @Brendan – True but I don’t see how they can claim copyright on Clinton’s words. Anyone covering the event had the quote but that’s not my area so I’m not going to assume. I do agree about the sloppy habits bloggers can slide into quoting and making their article the quote.

    I’m surprised no one is talking about this one point. Yahoo pays AP to syndicate their content. In order for Yahoo to recoup those funds bloggers link to Yahoo and is able to monetize the site with the help the traffic those links generate.

    AP sent a DMCA to Drudge Retort on a Yahoo article, essentially saying: Yes Yahoo you have to pay us and we’re going to DMCA anyone linking to your site we don’t like. o_O

    Considering that newspapers (and their online counterparts) heavily use AP, and they are struggling right now, I can imagine they are concerned.

    Do you have any thoughts on that? I suppose I hadn’t stopped to think about the syndication portion before. If I syndicate my articles and Yahoo (for example) is paying me for the right to do so, would I issue a DMCA on a site not linking to me but my client (Yahoo)? I don’t think I would.

  7. Brendan Says:

    > I suppose I hadn’t stopped to think about the syndication portion before.

    Syndication typically has rules, or rather, conditions of use. Like you do for 9rules members. :)

    AP isn’t concerned so much that it’s Yahoo!, rather they are specifically interested in the article IP. DMCA is typically used as a tool to overcome ‘fair use’.

    And if you sold content to Yahoo! and someone else takes that content without permission, you have every legal right to go right on after them.

    Lets look at it from this angle. Someone starts re-blogging entire tracts of 9rules content. Are you going to say “meh, righto chuck”, or are you going to gun after them with a clue bat?

    It’s worth remembering that it’s all well and good claiming fair-use is valid in (almost every) case, but do make sure that you have no concerns with content being ripped in turn. :)

  8. Tyme White Says:

    It’s not about having the right to go after them. Just because I can do something doesn’t mean it is the right thing to do.

    With 9rules content we don’t sell it and we don’t charge our members so comparing 9rules to a commercial business relationship is different.

    With Yahoo they pay AP to syndicate their content. Yahoo HAS to make a return on those funds otherwise AP will be out of business because the sites will not be able to afford to pay for the articles.

    In this case the quote was used on a Digg-type site with the ONLY intention of referring people back to Yahoo, AP’s client. Not a blogger, Yahoo. The user submitted Yahoo’s link, not their own.

    This is not a blogger writing crappy articles.

    Considering those facts sure AP “could” say, “Hey, you used too much content” (on a quote that they questionably do not have copyright over) but they interfered in the process of someone linking back to their client (almost like indirectly biting the hand that feeds you) – a direct link back to their client…no blog entry here. The user used the quote to send people back to Yahoo, AP’s client.

    That “should” be what AP wants. It’s the golden situation.

    When I say I didn’t think about the syndication part (on the AP/Yahoo deal not syndication in general) I’m talking about the ethics. In this issue, I could not ethically interfere. If users submit content to social sites linking back to my clients ethically I could not DMCA.

    I get what you are saying about abuse but where does one draw the line? I realize everyone has different ethical values but I try to be fair. In this case I think AP was greedy. That doesn’t mean there isn’t a huge problem with people/bloggers/writers abusing the fair use laws.

    It will be interesting to see what happens. Drudge Retort didn’t take the links down.

    On a side note – I like your logo. :)

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