
AP wins big: Why a court said clipping content is not fair use - protomyth
http://paidcontent.org/2013/03/22/ap-wins-big-why-a-court-said-clipping-content-is-not-fair-use/
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rayiner
It really grinds my gears when I see stuff like this: "While this could bring
more licensing revenue for journalism, it may also produce a phenomenon like
what is occurring in France and Germany where publishers are treating
copyright like a tax to protect outdated industries — and chilling online
innovation in the process."

Gee, how outdated can an industry be when you're fighting for the right to use
its original content for free?[1] It's not like the AP is trying to protect
the underling facts here. Meltwater could have gotten around the licensing
requirement simply by paraphrasing and summarizing instead of copying snippets
verbatim. But that would've required paying people and it's cheaper to just
let AP do the work for free. That's almost the definition of free-riding.

More generally, people throw out the word "innovation" whenever they want to
use content for free. The internet allows new distribution mechanisms. There
is innovation in that, sure. But distribution mechanisms are useless without
content. Creating an innovative new distribution system doesn't entitle you to
get content for that system for free. Ultimately, what people value is the
content, the distribution system is just a means to an end. If the creators of
that content want to be compensated for it, they should be. Nothing stops you
from "innovating" a new distribution system using content the creators of
which are happy to license for free, other than the simple fact that there is
no money in that because very few people want "indie" content.

[1] Does the government sometimes use law to prop up outdated industries?
Sure. Often the demand for a kind of product dies out but the companies
producing that product manage to talk the government into artificially
propping up that demand. If the government used regulation to prop up the CRT
industry after people had moved to LCD's, that would be an example. But when
it comes to copyrighted works, that's not the case. The demand for creative
content from the major record labels and movie/television studios has never
been higher. People desperately want the products Sony BMG, Warner Brothers,
etc, are selling. Forcing people to pay for the privilege is not "propping up"
an obsolete industry.

~~~
alexqgb
There is nothing "outdated" or "obsolete" about content production. The issue
is that technological advance has effectively stripped the business of the
legal protection that it - like every other healthy business on the planet -
depends on for survival.

Obviously, the unilateral extension the existing legal framework into the new
technological sphere is a recipe for disaster. I'll be the first to condem the
ham-fisted attempts to do so, and applaud the fully justified push back that
promoters of unenlightened copyright laws have received.

But to go a step further, and declare that this business - and this business
alone - is "undeserving" of any legal protection whatsoever, and that it - and
it alone - "needs to figure out a business model" that doesn't enjoy legal
protection from those who refuse to pay for goods taken or received,
overshoots the mark. And the persistance of these arguments is _exactly_ why
we need laws in the first place: put simply, some people are self-serving
assholes. They lack a sense of fairness or decency, and will follow the norms
of reciprocity only under threat of force.

Most people don't get further than their freshman year in high school without
discovering that these people are real, they are numerous, and they are a
curse. But like any number of curses (war, plague, famine, etc.) they cannot
be wished away. They have to be dealt with head on, forcefully, and with
enough severity to provide a deterrent to others who may be considering
similarly abusive pathways to profit.

With copyright, the question is, where do you draw the line? My own feeling is
that copyright law, which evolved over centuries, was never intended to govern
the conduct of private individuals. Historically, efforts by publishers to
extend their control into the realm of private, personal life have been wisely
checked (the Doctrine of First Sale is a shining example). And while the
relentless extension of copyright terms represents unchecked abuse, it's been
limited in that it still (grudgingly) respects the operative delineation
between public, commercial enterprise, and private sharing and enjoyment.
Indeed, these limitations have been the key to copyright's longevity as an
institution. While some publishers still chafe at _any_ limitations, the more
enlightened ones recognize that these parameters are actually the key to a
thriving culture, which is, in turn, their most vital natural resource.

That's why I think any efforts to prosecute private individuals under existing
copyright laws are an abomination. Reform - which we desperately need - should
include simple, unambiguous boundaries beyond which no publisher can reach.
And the life on the other side of those boundaries should be rich and noisy
and free. Of all the options I can think of, drawing the line with corporate
status is the most elegant. That is to say, you can only be sued for
infringement if you are a corporation.

Under this rule, the AP would have both the right and the responsibility to
throw the book at a commercial clipping service. As noted, the AP has no
monopoly on news gathering. If they fail to innovate themselves, or gouge
those who are willing to partner with them, they leave the market to other,
savvier news organizations. At the same time, they remain free to charge
proces in line with their full set of costs (i.e. production and
distribution), and not just the rapidly falling cost of distribution alone.

~~~
rayiner
I don't think it's necessarily a problem that you can go after individuals for
copyright infringement--the problem is the statutory damages. In nearly every
other civil suit, the fact that you can only get actual or punitive damages
filters out suits where there wasn't really substantial harm to begin with.
Without the statutory damages there would be no reason to go after individuals
for copyright infringement unless they were setting up a major operation in
which case you should be able to go after them, individual or not.

~~~
alexqgb
That's a really good point. I suppose that getting rid of the (insane)
statutory damages would make it economically unviable to enforce the law at
the individual level, and you could secure a healthy space beyond publisher's
reach in this way.

That said, I dislike the kind of law that makes everyone a criminal by
default, since opens the entire population to arbitrary enforcement. The other
advantage of limiting enforcement action to incorporated entities is that it
sidesteps any sticky questions about individual freedom of speech.

More importantly, it provides for a commercial adolescence. There's a big gap,
after all, between the work of hobbyists and professionals. And publishers
have been able to exploit this to the detriment of artists and audiences
alike. So I'm in favor of people being able to make commercial use of
copyright protected materials without permission or payment - so long as they
do so as private individuals. The assumption is that people finding limited
commercial success and wanting to carry that further will find corporate
entities indispensable. Whether they set up their own, or go into partnership
with ones that already exist, they'll need them to grow. These are people who
are ready and able to pay for the professionally produced sources they rely
on. Indeed, I suspect that people with serious professional ambition will
focus on handling these responsibilities in the same way that ambitious
undergraduates with an eye on graduate school manage to limit social life for
the sake of their studies. It becomes an expected part of going pro.

The famously exploitive agreements that artists have suffered under can
usually be traced to the absence of a space in which they can freely prove
their commercial viability. Creating this space would not only allow more
professional artists to develop (especially ones not connected to independent
wealth), it would establish a far healthier balance of power between them and
the major publishers and distributers that are usually needed to develop one's
appeal and audience fully.

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pedalpete
I think they need(ed) to look at this outside the context of this being a
digital solution.

If Meltweather had people go through web-pages and pick out references to a
client name, and then type up the relevant quotes and send the client a letter
by snail mail containing references to where the client was mentioned, would
this even be a discussion?

~~~
Someone
I think the "typing by hand" is irrelevant as it is just a means of copying
without any or significant creative part from the copier (and even if it did
involve creativity, it might still be copyright infringement. See
<http://en.wikipedia.org/wiki/Macmillan_Co._v._King>)

Clipping services that photocopied and snail mailed articles from newspapers
have existed for ages and, certainly in the EU, they pay copyright holders.

From cursory looks at EU cases, it seems to me that the primary distinction
the EU makes is that of deep linking search results (permitted) vs providing a
portal where users do not click through to original content (copyright
infringement)

Of course, there are gray areas here, but at least, IMO the intent is what
'the people' find reasonable.

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waterlesscloud
"Google News users clicked through to 56 percent of excerpted stories"

That seems really, really high. I wonder what they're using as the base there?

~~~
DavidWoof
They misstated the statistic. It's that 56 percent of Google News users
sometimes click through to excerpted stories (i.e., 44% of users never click
through to the original), not that the average user clicks through to 56% of
the stories.

When I read stuff like that, I always wonder if the reporter simply worded it
wrong, or if he actually thought that what he was saying might be true, or if
he simply didn't think about it and didn't care.

~~~
rhizome
Probably a bit of each.

------
hncommenter13
On another (mildly related) note, does anyone know much about Meltwater
itself? There's something that's always seemed a bit odd to me about the
company, but that's just an unsubstantiated hunch.

~~~
hncommenter14
I had to deal with Meltwater once, and formed the view that it was a
screamingly expensive news monitoring service that was easily replaced by a
handful of free Google News alerts.

Sadly, management took the view that a subscription would be a set-and-forget
way to tick the box on "staying abreast of the market" so I just had to suck
it up and renew the sub...

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moneypenny
As a journalism postgrad, I am extremely cool with this. AP employ thousands
of stringers all round the world to gather and verify news, in dangerous and
hostile places. Meltwater literally (not figuratively) took that news without
giving anything back. So fuck Meltwater, and the horse they rode in on, when
lovely people like Tim Hetherington give their lives to report.

------
Tangaroa
This is a hugely important decision. Any blog that excerpts a bit of a news
story is now guilty of copyright infringement, and it will be seen as
infringement for profit (hampering a fair use defense and increasing
penalties) if the blog has ads or a tip jar.

~~~
dmethvin
> Any blog that excerpts a bit of a news story is now guilty of copyright
> infringement

It wasn't "a bit" at all, read the article. News stories are written in
pyramid style, with the most important summary being in the _lede_ , the first
paragraph. That is what was being copied, as well as the title and any mention
in the article that contained whatever keyword the user used for the search.

In this case the copier was also charging users directly for the content, it
wasn't some indirect thing. Your summary seems both inaccurate and alarmist.

~~~
greyman
Exactly! In case of news stories, taking the headline and lede technically
seems like a quoting, but in reality it is grabbing the substantial part of
the original work. Moreover, when a journalist works on a story, he needs to
compile much more information and interview much more sources that finally
will appear in the news story, so there is much more hidden work, which the
scraper don't need to do.

I personally applaud this decision, and I am also a bit surprised that EFF
would support the scrappers.

I also like this quote and think the Judge is exactly right: "Judge Cote
rejected the fair use claim in large part because she didn’t buy Meltwater’s
claim that it’s a “search engine” that makes transformative use of the AP’s
content. Instead, Cote concluded that Meltwater is more like a business rival
to AP: “Instead of driving subscribers to third-party websites, Meltwater News
acts as a substitute for news sites operated or licensed by AP.”

