Citizen Journalism: Let's Talk about Fair Use

Update on new AP per words charges for quotes. See comment below by carol. Bumped from 2008-06-16 09:37:57 -0500 by carol

important discussion about giving credit where credit is due -- thanks Susie -- originally posted 2008-06-15 17:35:37 --bumped, cho

There's been some recent discussion of fair use as a result of 7 Digital Millennium Copyright Act (DMCA) take downs filed by the Associated Press (AP) against, The Drudge Retort. The action has a number of bloggers freaked and is now making the email rounds.

Before assuming this is a clear cut case of the Man bearing down on the little guy, we should look at Fair Use.

Things started just a few days ago with a blog post (and subsequent email) from Rogers Cadenhead:

AP Files 7 DMCA Takedowns Against Drudge Retort
By Rogers Cadenhead, cadenhead.org June 12, 2008

I'm currently engaged in a legal disagreement with the Associated Press, which claims that Drudge Retort users linking to its stories are violating its copyright and committing "'hot news' misappropriation under New York state law." An AP attorney filed six Digital Millenium Copyright Act takedown requests this week demanding the removal of blog entries and another for a user comment.

The original posts and comments have been taken down so it's impossible to know what was there. Perhaps there were no citations crediting the AP or its authors as well as a lack of context as to why the information warranted discussion. The AP wrote in its email to the Drudge Retort:

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.

The AP sells a product, news. Distributing the excerpts could effect and undermine the value of that product. And that brings us to Fair Use under Copyright law of the U.S. Code.

Title 17 U.S. Code Section 107

§ 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Distributing excerpts of recent AP news could diminish "the value of the copyrighted work" if it isn't being paid for.

What can a blogger do?

Summarize the article, providing credit to the original source, "In a recent article from the Associated Press..." Include the information as part of a bigger commentary providing a clear citation and link to the AP original. Include the Title, Author's name, publication, date and url.

Attribution should include:

• Title
• Author
• Publication
• Date
• url

If you need to quote from an article and you're unsure if it meets Fair Use, contact the party that holds the copyright and simply ask for permission. They'll likely provide you with how they wish to be cited in your work. The AP provides contact information on its website for permissions:

To use AP material online
E-mail: apdigital@ap.org
Fax: +1-212-621-5488.

If there doesn't appear to be any contact information for the original copyright holder, include a disclaimer citing "fair use" under Title 17 U.S.C. Section 107 with your contact information. A sample disclaimer as used on the non-profit political news and editorial analysis website, TruthOut.org:

In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.

If a copyright holder asks you to remove material, be considerate, and remove it in a prompt and timely manner. If you don't remove the material, or worse - insult and mock the party making the request - the offended party can contact the ISP the material is hosted with and have the entire site brought down. And yes, an ISP will do that if the complaint is legitimate. It's not pretty when it happens.

PS I'm not a lawyer and, ya' know, this isn't legal advice. This is just common sense stuff.

Additional Reading:

Associated Press - About us page

Digital Millenium Copyright Act of 1998 - PDF
U.S. Copyright Office, December 1998

Title 17 U.S.C. Section 107 - Limitations on exclusive rights: Fair use
United States Code
U.S. Copyright Office

AP Files 7 DMCA Takedowns Against Drudge Retort
By Roger Cadenhead, cadenhead.org June 12, 2008

Associated Press DMCA Takedown Request - email from AP
By Roger Cadenhead, cadenhead.org June 10, 2008