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

0
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Comments

part of the problem. I was able to find two of the pages where the AP requested removal. The only attribution the contributor at the Drudge Retort gave was a link in the title of the post back to the original article. The quoted material was not put into a blockquote, italicized or in any way treated in a way to distinguish that these were not the original words of the person who posted them. In other words, if the reader did not know to click on the link in the title (which btw, is not easily seen as a link unless you run your cursor over the text), the reader would be left with the impression that the entire post was authored by the poster at Drudge Retort.

Seems to me like a simple problem with a simple solution, clearly note material that is a direct quote from someone else with proper attribution. I don't see any reason for alarm with a publisher demanding the use of proper convention when using their material.

That's pretty much what I figured must have happened. The material appeared as if it was authored by the poster. Attribution could have helped.

Drudge Retort was also infringing on "hot news" - time sensitive - pretty much the purpose of a news wire is breaking news.

I grabbed screencaps of the google cached pages of the posts in question if anyone is interested in having them.

I guess the folks at Drudge Retort must have missed the news that publishers are using software to search and track down posts that violate copyright. This is not new or surprising in the least.

Just an FYI... here's from the ePluribus Media FAQs about posting:

Avoid abusing copyrights
When copying material from other sites or publications, link to the original instead of copying the entire original article. The most common forms of abuse are (1) quoting more than "fair use" portions of copyrighted content and (2) omitting proper citation of original authors. See Luaptifer's excellent commentary on plagiarizing: Citizen Journalism Priority: Avoiding Plagiarism in Research and Writing. The community as a whole can encourage better research and journalism practices by conscientously embracing citizen journalism behaviours.

Folks who do original news gathering (and pay for it -- with their own time, money, effort, equipment etc.) should be afforded citation -- name, title, date and original publication.

It's pretty simple.

on plagiarism:

A Citizen Journalist's Responsibility: Avoiding Plagiarism

To recap his reasoning for writing -- way way way back in 2005:

After I ventured into the discussion domain of the internet, I observed that I was among the 5-10% of message board inhabitants to exhibit the rare behavior of correct attribution and source citation. It proved invaluable when in argument with kneejerk reactionaries so many times (even the rare 1% who'd cite) to backtrack their assertions where I'd nearly always find the info to undermine their use of widely distributed talking points.

It is now second nature to me: to quote and link work I'm using in current research and writing efforts.

The investigative work we do here is entirely dependent upon the same things, the work of other writers, and requires the same care to explicitly and correctly attribute the work we're building upon. I've noticed in some research we post and articles we draft that SOP may not be second nature to all of us.

For a refresher, I thought I'd excerpt the best compilation of How to Avoid Plagiarism examples that I found and present them here. To motivate us all to be mindful of the issues, remember that it was our exposure of Jeff Gannon/James Guckert's plagiarism of other writers that helped to wreck his propaganda machine.

Emphasis mine.

Small note: Waxman has apparently subpoena'd the FBI's interviews with Bush & Cheney re: Plame (theGavel, today), which sparked the original investigation @ Agent Orange.

He just keeps coming back. ;)

This was sent from Carol. The New York Times has picked up the story. The Associated Press is working on new guidelines for bloggers and hopes to have something out quickly. Apparently, there was quite an outcry over their actions against Drudge Retort.

The Associated Press to Set Guidelines for Using Its Articles in Blogs
By Saul Hansell, NY Times, June 16, 2008

Picked up the subject as well in its Technology section.

AP picks a fight with bloggers
By Thomas S. Mulligan June 16, 2008

The following post appeared yesterday on by Patrick on the blog Making light. I checked out the link to AP which sets up fees and the link worked as far as I could see, just as the post described.

The Associated Press wants to charge you $12.50 to quote five words from them
Posted by Patrick at 03:05 PM * 113 comments
The Associated Press, having already announced its intention to harass bloggers who publish snippets as short as 39 words from AP stories, has now published a web form through which intimidated parties can give the AP money in return for “permission” to publish as few as five words. ...

carol

A non-profit only pays $7.50 for 5-25 words.

More confusion...if I quote the AP, am I non-profit, since I want to post it here, on a non-profit site? What if I post it on my own personal blog, which is decidedly non-profit, just not legally so--then what?

It wasn't clear to me if the rate sheet is just for breaking news or for in-perpetuity as there's another rate sheet that allows you to post it for free. See it here:

What kind of web or intranet use would you like? with the following options:
Free Web Post
Instant Web Post
Instant PDF E-Print
Customised PDF E-Print

All of these options are just for the Article: AP News Alert for Defense Lawyers say 9/11 defendants rushed to trial to influence US elections, seek dismissal

If you click "republish" - you'll arrive at pricing options. Click "back" and you'll arrive at even more options.

Personally, I find it all very confusing.