As I wrote last week, bloggers have repeatedly pumped the story that the AP charges us to quote its stories. Problem is, that story’s just false and has been so since the meme first arose two years ago.
So how did this zombie lie come to be and why can’t we put it to rest?
Danny Sullivan pointed out in comments that the AP has a somewhat-confusing copyright-licensing scheme (a third party service called iCopyright) linked at the bottom of each story. But that’s no excuse for savvy blogs like techdirt and TechCrunch to repeat what they know to be nonsense. Techdirt’s Mike Masnick said this in comments:
Sure the AP says it won’t charge, but it has threatened bloggers with lawsuits, and it hasn’t changed the iCopyright form. The reason that we keep pointing it out is to highlight the blatant hypocrisy of the AP’s position.
But those lawsuits takedown notices aren’t related to the charging-for-quotes story.
The AP sent Rogers Cadenhead (who also comments on my original post) takedown notices after his users put up several whole AP stories on Drudge Retort, along with snippets of several other ones. Cadenhead didn’t dispute the first group, but said the second was fair use. He got a lawyer, the fight went viral, a guy who came to Cadenhead’s aid got wrongly mauled by a blog lynch mob, and the AP quickly apologized for being “heavy-handed” in the dustup.
During the midst of this, a blogger spotted the iCopyright thing and started the “Associated Press wants to charge you $12.50 to quote five words from them” meme.
What is iCopyright? It’s a third-party company that sells licenses for commercial use of copyrighted material. “Commercial use” being the key words here—like when a company buys reprints of a favorable story about it to use in its own marketing. The iCopyright site, alas, isn’t exactly clear on who should pay for a license and why.
So the AP went on the record when this story first blew up two years ago saying iCopyright is not aimed at bloggers. And then it issued an official statement in August 2009 after another fake blog controversy was stirred up—this time over the false idea that the dastardly AP was going to try to prevent people from linking to its stories. Again, it said the iCopyright form was not for bloggers.
The irony here is that by making hay and getting pageviews out of this false controversy, the bloggers perpetuating this stuff are creating more of a chilling effect on the quoting of AP material than the iCopyright boilerplate itself ever would have, linked as it is in tiny type at the bottom of the wire’s stories.
Sullivan said in his comment:
Sure, TechCrunch and PaidContent may know better. But so does the AP, which has failed to change the form that caused the outcry in the first place. So when it come back to bite them again, I think the blame is more with the AP.
I disagree that the blame is more with the AP—the whole story is bogus—but that’s not to say that it and iCopyright are blameless. The AP mishandled the Cadenhead case, as they’ve admitted, and the iCopyright language—for the 0.001 percent of people who click through to it—doesn’t explicitly say that it’s for commercial use. Then again, it’s worth noting that the AP doesn’t (and can’t) get to define what fair use is—the courts do.
At no time has anyone said the AP tried to force them to use the iCopyright service, which is also, you should note, used by folks like the Canadian Broadcasting Corporation, which has also gone through a (much milder, as befitting our neighbors to the north) blog scrum of its own because of it.
It’s also worth noting that The New York Times has the same kind of third-party licensing service at the bottom of each of its stories, in this case Rightslink by Copright Clearance Center. If you follow it, you can ream the Times for “charging bloggers by the word,” but I don’t see anybody doing so.
Rayn,
What would be your definition of a blogger? And the definition of commercial use? Blogging is not automatically non-commercial. Blogging is reporting with out an MSM credential. And techdirt and Paid Content nearly have MSM credentials (Paid content being owned by the guardian and all). So I'm not at all sure that a statement like "AP does not charge bloggers for non-commercial use" could possibly have any meaning at all. But you haven't said that have you.
I make my living in a copyright industry and I believe Rightslink from CCC is an important service for all parties. But using strange sentence construction does not make an argument. The point that needs to be made is that fair use needs to be defined better so that all parties know their rights and can not be intimidated by bullies wielding "copyright" like a stick.
#1 Posted by timothywmurray, CJR on Wed 14 Jul 2010 at 01:56 PM
Blogging is far from "reporting without an MSM credential." For one thing, very little reporting is done by most bloggers. For another, plenty of bloggers (including me) write for (oy) "MSM" publications, whatever that means.
I'm also not sure of which "bullies" you're referring to, nor what you mean by "using strange sentence construction does not make an argument." Which I agree with, in principle. But, ironically, I have no idea what you're talking about.
Ryan's item here does confirm something that's been true all along -- there are a lot of immature people out there, clinging to now-outmoded notions of the evil "MSM" and whatnot. More irony: their ideas are far more quaint and clueless than the ideas of even the most entrenched newspaper editor in 1997.
#2 Posted by Dan Mitchell, CJR on Wed 14 Jul 2010 at 03:02 PM
"AP does not charge bloggers for non-commercial use"
I think Tim is saying that you haven't flat-out stated the above: your point seems to be that "AP does not automatically charge bloggers for non-commercial use and currently is only interested in charging for commercial use like reprints," although you didn't that explicitly anywhere so I'm not sure if that's what you mean.
The AP has said that the license isn't "aimed" at bloggers, but the license allows them to aim it at whomever they please in the future, which means that at some point they will. That's capitalism.
#3 Posted by Nate, CJR on Wed 14 Jul 2010 at 03:54 PM
The problem is that from the AP's site, the situation appears to be very clear.
1) Visit an AP story on ap.org.
2) Notice the bar across the top of the article, including a copyright symbol and a "Reuse options" link.
3) Click on the "Post" option ("Post all or part of this article on a web site, intranet, or blog")
4) Choose "Post excerpt"
5) In the "Pricing" section, choose "Non-profit".
As far as I can see, that's the correct option for not-for-profit blogs. Total cost for one word: $12.
There's also a link there, saying "Do I need a license to republish an excerpt from this article?"; this links to https://license.icopyright.net/rights/fairUseStatement.act?sid=36&tag=7.5721 , which appears to be trying to suggest that fair use isn't really applicable if you have adverts (questions four and five, and possibly two, and the note directly beneath the questions).
This is where the "meme" stems from: a clear link, which suggests very strongly that even non-commercial ads must pay for even a single word.
#4 Posted by Raftab, CJR on Wed 14 Jul 2010 at 03:58 PM
I'm with Raftab on this one: the meme seems entirely valid.
According to the AP site, they clearly do require you to pay to post excerpts to non-profit blogs (have a look for yourself). They may have said in other contexts that they won't enforce that requirement, but that hardly invalidates the story. Nor does it preclude them from eventually enforcing it, should they change their mind or not like a particular usage.
#5 Posted by Hugh, CJR on Wed 14 Jul 2010 at 04:19 PM
Given how little actual reporting goes on in the MSM it is absurd to use that as a distinction between bloggers and the MSM. In fact, there is probably no meaningful distinction to make; which is my point. If there is no line between bloggers and other people who use content, and there is a very fuzzy line between commercial and non commercial use; then we are left with an absolute assertion of copyright and a vague statement (arguable even more vague than the already extremely vague, fair use) that some rights under copyright might not be universally enforced.
#6 Posted by timothywmurray, CJR on Wed 14 Jul 2010 at 04:28 PM
@ Raftab and Hugh - not only are they saying that you have to pay even if you're a non-commercial site, they're also strongly suggesting that there is NO fair use of their product BECAUSE they are charging you for a license:
"Some useful questions when doing your analysis include...Are you choosing not to exercise an affordable and accessible licensing mechanism? ...Answering "Yes" to any of the above questions is cause for serious reflection before assuming "fair use" or "fair dealing" applies."
Ironically, even educational use is billed (at a slightly lower rate) even though educational purposes are most clearly within the bounds of fair use.
#7 Posted by Courtney, CJR on Wed 14 Jul 2010 at 04:43 PM
Why do people keep referencing Methylsulfonylmethane (MSM)?
#8 Posted by Simeon Howell, CJR on Wed 14 Jul 2010 at 06:55 PM
Cory Doctorow • #2 • 12:58 PM Wednesday, Jul 14, 2010 • Reply
Here's the facts: the AP officially declares that any commercial quotation (that is, quotation on a site with ads) requires licensing, even down to 5-word quotes.
The AP repeatedly and publicly has described its various (kooky) plans to catch all the naughty people who quote it without such a license and do things wot man was not meant to ken of and such.
The licensing entity they use, iCopyright, has a crazy, weirdo FAQ that says that there's basically no such thing as fair use and you really should buy a license for every quote, no matter how trivial, or you might get a huge fine or worse. T
hey also offer a $1,000,000 bounty to anyone who finks out unlicensed quoting (and believe it or not, iCopyright's FAQ was way, way worse until they caught all the public fire that Ryan characterizes as a tempest in a teapot).
So: AP hangs out a shingle that says, fair use basically doesn't exist. Also, we sell licenses for quotes as short as 5 words (and what's more, as a term of these licenses, you can't criticize us or make fun of us). Also, if you're a commercial user of any kind, you need a license. But bloggers don't count. Unless they're commercial. Whatever that means.
And then they went out and tried to talk Congress into passing a "hot news" law that makes it illegal to report the same facts as the AP, even if you're not quoting them.
#9 Posted by cory doctrow, CJR on Thu 15 Jul 2010 at 12:21 AM
So it would appear that the only "zombie lie" part of the meme is that AP wants $12.50 for five words, when it is in fact $12 for one word.
Hmm.
The actual rate (I just visited the AP site to check -- that's called reporting) is $17.50 for one word. No exceptions for bloggers, even if they have zero revenue. The $12 rate is for a registered nonprofit. As AP's hired agent puts it, "For non-profit pricing you must represent a government-qualified non-profit organization and certify that you will use this article solely for non-profit purposes." Furthermore, the naive but honest bloggers who simply want to "do the right thing" are nowhere informed that the AP has decided not to charge them.
The notion that AP is not out to get bloggers may be literally true, for now, under its current management policy. However, (a) AP makes no such exception in any of its notices, (b) it clearly does include bloggers in its notices, (c) a new management could change its current policy at any time and go after all current and previous blog postings that remain on the Web.
Your citing of the New York Times is downright hilarious, as obviously you didn't do the basic reporting of clicking through. For the record, if you chose the option of posting an excerpt of 25 words or less on a nonprofit blog forever, you will find that the price is: ZERO. That's right, the Times explicitly gives you a FREE (no cost) license for excerpts up to 25 words.
Some "zombie lie."
#10 Posted by I. Liberatus, CJR on Thu 15 Jul 2010 at 03:54 AM
Ryan, thank you for an accurate and sensible story. It's nice to see one for a change. While it is true that many publishers use iCopyright to license their content for commercial use, it is also used by many publishers and bloggers for promotional and non-commercial purposes. iCopyright provides the same kind of free sharing and attribution tools as Creative Commons, Tynt, and other content services. In fact, most of the "transactions" processed by the iCopyright system every day do not require a fee from the user.
Allow me to also correct the comments of those herein, some of whom have consistently been the biggest perpetrators of the lie. iCopyright has never said there is no such thing as fair use. It has emphatically stated that it is a big supporter of fair use. iCopyright has also never offered a bounty for "finking" unlicensed use. It informs publishers of the program offered by the SIIA, who does offer a bounty for egregious infringement.
Finally, it is important to shout out again (though no one seems to listen), that iCopyright does not establish the prices or licensing terms of use for content. Each content owner sets the rules and the prices. Many content owners use iCopyright to sell the rights to use their content, and others grant rights at no charge in exchange for attribution.
iCopyright does not interpret or enforce copyright law. It enables creators to get credit for their works and to get paid for them if they so choose.
#11 Posted by Mike ODonnell, CJR on Thu 15 Jul 2010 at 01:27 PM
"Given how little actual reporting goes on in the MSM it is absurd to use that as a distinction between bloggers and the MSM."
WFT???
Turn off the vapid television news. Pick up a Wall Street Journal or a New York Times. Read it. Then see if you can make the same statement. Seriously. If I could have any magical power, I would wish for the power to stop people from making assertions that have no basis in actual facts.
#12 Posted by Amy Goodall, CJR on Thu 15 Jul 2010 at 01:42 PM
timothywmurray, "Blogging is reporting without an MSM credential." No it's not, actually. See Dan's comment.
Perhaps I should have said "purely commercial purposes," but I think the intent was clear.
The law says fair use is "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright" and it's judged based on whether the use is for commercial purposes, the extent of the use, the effect on the owners' market value, etc.
Nate, the AP is a nonprofit co-op.
Raftab, as I said, that language should be cleaned up by the AP and iCopyright. Meantime, that doesn't excuse perpetuating a BS meme.
Hugh, that's for stuff like reprints. CJR is a nonprofit. I'm a blogger. I don't have to pay to quote the AP. I and other bloggers are covered by fair use law and the AP agrees. Now, if I start aggregating their work every day, that's a different story.
timothywmurray, take that up with the Congress. They're the ones who wrote the law. Meantime, the AP has said officially and repeatedly that's not what the form is for.
Courtney, see above.
Cory says "the AP officially declares that any commercial quotation (that is, quotation on a site with ads) requires licensing, even down to 5-word quotes." That's false. And even if the AP were stupid enough to declare that, it doesn't make it so. The AP is not judge and jury.
I Liberatus: The AP does not charge bloggers to quote one word or five words or fifteen words. And, lots of bloggers make money like a newspaper makes money (or used to, anyway!).
#13 Posted by Ryan Chittum, CJR on Thu 15 Jul 2010 at 08:08 PM
Ryan,
Thanks for your (brief) response, stating that the language should be cleaned up by the AP and iCopyright. I would argue that until that happens, the meme is being perpetuated by AP and iCopyright - everyone else is simply quoting from that.
Mike O'Donnell,
" iCopyright has never said there is no such thing as fair use." - however you are very strongly suggesting that fair use doesn't apply when copying a few words, attributed or not, from any copyrighted work, aren't you? I'm going to pull a few quotes from your fair use statement page at https://license.icopyright.net/rights/fairUseStatement.act?sid=36&tag=7.5721 :
"However, republication on the internet, without a license, of even a small portion of a work can constitute copyright infringement"
"...there is no specific number of words or lines that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission."
"Are you publishing the excerpt widely, such as on the Web? … Answering "Yes" to any of the above questions is cause for serious reflection before assuming "fair use" or "fair dealing" applies."
I would agree that the language on that page is (beautifully) ambiguous, but if I didn't have a broader knowledge of fair use, I would be rather daunted by sentences such as the above even for two words.
#14 Posted by Raftab, CJR on Fri 16 Jul 2010 at 12:47 PM