Tuesday, June 17, 2008

AP steps in it

If you've been following any of the tech or journalism blogs, chances are you've come across something about AP's demand that the Drudge Retort take down a handful of posts that the wire service says compromise the value of its product. Those posts were basically headlines/links and a 30- or 40-word or so summary cut and pasted from AP stories.

I won't bore you with a big writeup. Jeff Jarvis has his usual exhaustive coverage of such issues.

And, as the Times reported Monday, Jim Kennedy, AP's strategy director, decided the takedown letter was a little "heavy handed" and now wants to set some guidelines for bloggers. Good luck with that; it's got about the same chance as earlier proposals of ethics for bloggers, proposals fatally flawed because they too often come across as treating bloggers as some kind of unitary professional class. (Note: I am not saying such things aren't useful as a sort of Good Housekeeping seal -- if I as a blogger want to subscribe to them and tell you so, you can decide whether I meet your criteria. But seeking some kind of general blogosphere ethics is about as effective as telling the Colonial era pamphleteers that they had a code of honor when referring to the British.)

Earlier, AP took out after a site that was criticizing and commenting on AP photos. And the AP's latest moves have brought the expected retort - essentially ignore AP copy and spotlight solid local reporting efforts. (A noble goal but, for now at least, for all practical purposes impractical. It wrongly casts the AP as just a rewrite mill when a substantial part of its content -- indeed some of the very content being contested -- is original reporting.)

My question: Why is anyone surprised at this? It was a year ago that AP said it was hiring Attributor Corp. to police the Internet for scofflaws using its copy.

The AP has to do this -- and don't let Kennedy's apparent softening throw you -- because its basic business model still relies on command and control. It has to be that way. Too much of what AP does -- by necessity -- is commodity news . Its value comes from relative scarcity. That is not going to change for the AP for some time, even as it is trying to move away from it. But we've been over it here several times of why the walled-garden approach is likely to eventually fail (see the reaction noted above to AP's latest move -- such calls for alternatives push the meter just a little bit farther in that direction each time).

The passionate "fair use" folks have come out in defense of the excerpts quoted. But it is hardly as clear-cut as they make it sound.

Even a few well-chosen words can impinge the value of a "work." And while excerpts can be used for fair comment and criticism, the photo site mentioned earlier provides the nut of the problem -- it is directly criticizing the photos it is showing.* But if application of the concept there is unclear, how clear is it for "recommendation" sites like Digg or Drudge Retort where people are posting links and short excerpts, but there is almost no criticism/comment in the initial post (not counting any comments that follow), unless you want to try to sell the idea that the mere posting/recommending is a form of fair comment?

And, as folks have found out, the DMCA is weighted in favor of the copyright owner -- even if you think you have a good case, the material has to come down while you spend money to contest it (or at least draw up a counter-notice).

Having said all that, the bottom line is that AP stepped in it. It has done exactly what it cannot afford to do -- get people thinking about alternatives, especially the people who can make it technically happen.

(BTW: While Kennedy talks about new arrangements, Robert Niles points out that AP does have a licensing scheme already in place -- at $12.50 to use up to 25 words, though the price per word goes down as you use more. And it probably should be noted that really is aimed more at businesses than at bloggers.)
Media Bloggers Association founder Robert Cox provides some meaty backstory to the whole affaire AP. It's the MBA that Rogers Cadenhead, propietor of Drudge Retort, asked for help.

I agree with Cox, and I hope you got that from my post above: I do not see this, as so many commentators do, as AP launching nuclear strikes against blogging. But I do expect to see more. It would make perfect business sense to buld up a series of small DMCA cases against operators of limited means to establish a precedent that it retains some kind of control. The problem is, of course, that the best way to do it would have been to reach out to a variety of groups such as the MBA, the EFF, Berkman Center, etc., and see if some working guidelines could be developed so that people at least knew where AP stood. Unfortunately, the way AP did it almost never works out well.

But this is not a surprise. AP has always had a bit of a fortress mentality. a natural outgrowth of its desire to have its members, not it, front and center. It is gradually and grudgingly trying to change its culture as are many others.

*The problem with the picture site, Snapped Shot, is that it was using the photos to criticize their content, but in many cases not the photography itself (as in technique). Here's an example -- with the photos now killed. Fair use with photos is tricky, but it generally covers criticism of the photographer's technique (i.e., his or her lighting or composition), not what the photographer chooses to shoot.

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