Last week, the Associated Press issued several DMCA takedown notices on a Web site called Workbench, claiming the site had infringed its copyright when it posted ledes and titles from a handful of AP stories. The Associated Press, which is a cooperative owned by more than 1,000 newspapers, which contribute content to the collective and use content from it. I am intimately familiar with the AP and how it works, and think that the cooperative has evolved into an influential, primary news organization because so many newspapers have abandoned original reporting in so many areas due to real or perceived financial pressures.

(Next time you read your local newspaper, take notice of how many stories are wire service stories from AP, Reuters, Agence France Presse, or a similar agency.)

AP’s tactics, however, raise some interesting issues about copyright’s use and applicability in a networked information environment, where virtually every action invokes one of the six exclusive rights.

I address these issues in no particular order.

1. The DMCA Takedown Process: I’ll address both sides of the same coin. The first side is an opinion many hold: “The DMCA takedown process is flawed and must be amended.” The safe harbor provisions under Section 512 allow a “service provider” to avoid infringement liability so long as the “service provider” removes or disables access to the allegedly infringing content upon being served with the takedown notice. As Wendy Seltzer illustrated last year, the takedown provisions do not provide for any assessment of fair use (or any other copyright exception), and provide weak safeguards against abuse. (For example, retailers like WalMart abuse the process every Thanksgiving holiday by issuing takedown notices for holiday sales information that, by any reasonable measure, is factual — and therefore not subject to copyright protection.)

The flip side is equally compelling, yet not quite as popular: “Service providers should not roll over reflexively and accept such DMCA notices without investigation.” Granted, there are costs associated to training staff to handle these notices properly, but those are fixed costs that come with this particular business. An ISP would have to train its staff to handle any sort of legal notice, including a subpoena, so DMCA notification training should not be an issue.

(See Section 512(k)(1) for a definition of “service provider.”)

Further, I see nothing in the takedown procedures that requires any sort of investigation into the paper’s validity or credence, and a strict reading of the statute may prohibit such an investigation … so long as the “service provider” is satisfied simply to comply with the DMCA and punt on any extralegal responsibility it may have to its customers. My reading of this tortuously long statute indicates that it “service providers” are required to expeditiously remove, or disable access to allegedly infringing material in order to qualify for the “safe harbor.” Absent qualifying for the safe harbor, I see nothing that requires “service providers” to expeditiously remove, or disable access to allegedly infringing material.

What is the worst that could happen if a “service provider” decided to question the takedown process, and in the process disqualify itself for the “safe harbor”? It gets sued for copyright infringement? Surely, no person or entity wants to get sued, but is it too much for ISPs to show a little spine on this issue, especially if the spine showing results in bad press for the copyright owners? (Oddly, bad press for the copyright owners may actually help keep the issue out of the courts. And bad press may be the only effective tactic left in stemming the inexorable march toward narrower interpretations of copyright exceptions that don’t require compensation or permission.)

Besides, an ISP recently showed some spine and objected to some of the DMCA’s provisions: Verizon, for example, litigated the DMCA subpoena provisions … and actually won.

2. The Trial Balloon: Once The New York Times got hold of the story, the Associated Press had retreated from its initial, aggressive actions, calling them “heavy-handed.” The implication is that an overzealous legal department ran amuck without consulting the business side of the building.

This is garbage. The AP knew exactly what it was doing, and the legal department had full sanction from (and was in consultation with) the business side of the building. In fact, I’d go so far as to say that AP did not consider their actions to be “heavy-handed” until the Times inquired about this issue. (It is significant that the Times is a cooperative owner of AP, and also has increased its implementation of blogs in the newsroom and on its Web site.)

This is not an accident at all. The AP wanted to see how aggressive it could get, and for how long, before its actions were (a) noticed by business partners (or at least entities or executives it respects), and (b) questioned or criticized by those partners. AP will use this incident (and the reaction) in the future as a barometer for how aggressive it can be in proscribing uses of its content that are not explicitly licensed. Next, what we’ll likely see is a new AP content license that is promoted specifically for bloggers. Part of the market research for such an initiative, however, is occurring now, with this shot across the bow.

The concept of a content license for bloggers is neither new, nor necessarily negative. But that license will be positioned as an insurance policy: buy the license and we won’t sue; but if you don’t buy the license, then we make no guarantees. It is the proverbial Corleonic proposition.

Implicit in the “no guarantee” part of the equation is AP’s behavior in this situation. When this issue arises in the future, the AP’s rationale will be that while there were no (or fewer) licensing options when AP approached Workbench in June 2008, now (whenever that time in the future is) you have options … in the form of the license. The options won’t be “fair use or some other exception,” “fair use or not fair use,” or even “fair use or license,” but instead “license or risk getting sued.”

I think AP is beta testing future business initiatives (and perhaps stalling for time to get its initiatives together) while using allegations of copyright infringement and the hammer of a lawsuit. This is not the first time a large copyright portfolio has done this: I think the RIAA has done this for years, for example. I think the three academic publishers who sued Georgia State University for alleged infringement via electronic reserves are doing exactly the same thing, under the guise of “protecting authors” and maintaining incentives for future authors to publish.

The problem I see with this tactic is that it narrows attempts to render irrelevant any discussion of the bevy of copyright exceptions that are allowed under the law. Muting discussion of exceptions works consistently with promoting licensing as a solution to avoiding copyright infringement. “Don’t worry about copyright; it’s too complicated. Buy the license and be secure in knowing that you (or your organization) are in compliance,” goes the pitch. What the pitch really is saying though, is “Pay for everything without referring to the copyright exceptions that, under certain circumstances, will allow parties to use, access, reproduce, distribute, or remix portions of protected works without having to ask for permission and without having to pay.” That’s not a solution; that’s a surrender.

Dastardly? Perhaps. Cynical? Maybe. Beyond the realm of possibility in an overheated copyright environment? Absolutely not.

3. Fair Use & the Inverted Pyramid: In the same Times story, writer Saul Hansell reported the following:

Even if The A.P. sets standards, bloggers could choose to use more content than its standards permit, and then The A.P. would have to decide whether to take legal action against them. One important legal test of whether an excerpt exceeds fair use is if it causes financial harm to the copyright owner.

“The principal question is whether the excerpt is a substitute for the story, or some established adaptation of the story,” said Timothy Wu, a professor at the Columbia Law School. Mr. Wu said that the case is not clear-cut, but he believes that The A.P. is likely to lose a court case to assert a claim on that issue.

“It’s hard to see how the Drudge Retort ‘first few lines’ is a substitute for the story,” Mr. Wu said.

Associated Press, obviously, thinks differently. In a June 3 letter to Rogers Cadenhead, Workbench’s editor, the news cooperative’s Intellectual Property Governance Coordinator wrote the following:

… you purport that the Drudge Retort’s users reproduce and display AP headlines and leads under a fair use defense. Please note that contrary to your assertion, AP considers that the Drudge Retort users’ use of AP content does not fall within the parameters of fair use. The use is not fair use simply because the work copied happened to be a news article and that the use is of the headline and the first few sentences only. This is a misunderstanding of the doctrine of “fair use.” 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.

(By the way, isn’t “Intellectual Property Governance Coordinator” a great title? I would have settled for “IP Majordomo,” but Intellectual Property Governance Coordinator sounds magisterial.)

There is a practical problem with Professor Wu’s statement, and it is connected to Associated Press’s interpretation of fair use: journalists write news stories using a technique called the inverted pyramid. In the inverted pyramid form of writing, a news story’s most substantive, important, and informative information appears near the top of the article, while contextual information falls further down into later paragraphs. Essentially, the inverted pyramid form of writing requires news stories to answer the most important questions — who, what, when, where, how (and set the tone for answering “why”) — within the first three paragraphs. In the tightest news writing, a reader should be able to answer the most important questions in the first 3 to 5 sentences, which include the “lede” (or lead).

The rationale behind the technique is quite sensible: it allows readers with little time a way to be informed quickly, particularly if one is scanning the paper. The technique, which has been around and used for centuries, represents a CNN-style of reporting that existed before Ted Turner even was born.

From a legal perspective, though, one could argue reasonably that the inverted pyramid technique, combined with contemporary blogging practices, has an effect on fair use. If you look at the four-plus factor test in Section 107 and compare it to how news writers construct their stories using the inverted pyramid, the first 3 to 5 lines of a news story essentially constitute factors three (”amount and substantiality of the portion used in relation to the copyrighted work as a whole”) and four (”the effect of the use upon the potential market for or value of the copyrighted work”). Said another way, the inverted paragraph form of writing — which includes “the first few lines of a story” that Wu claims could not be a substitute for a story — is a substitute for the story. That what it always has been designed to be. By extension, if online writers are using the first few lines of a news story, and news stories (almost universally) are written in the inverted pyramid format, then online writers that use those lines are substituting for the news story.

Let me take it a step further. If findings for or against fair use are based upon a theory of commercial substitution, then it seems that every use of a news story’s first few lines is, a commercial substitution that finds against fair use. Fair use should not be winnowed down exclusively to commercial substitution, but given Harper & Row v. Nation Enterprises, 471 U.S. 539, 566 (1985) (”[the fourth factor of Section 107] is undoubtedly the single most important element of fair use”) and the fair use’ otherwise vague and inaccessible nature, most folks will use commercial substitution as the clearest guideline in an otherwise foggy doctrine. (This is especially true of copyright portfolio owners, because they can argue that virtually any invocation of the exclusive rights rights is (or may be) a commercial substitution, and therefore, beyond the scope of fair use.)

To be fair, William Patry has called “erroneous” the Harper & Row court’s assertion that the fourth factor is “undoubtedly the single most important factor,” but I do not know of any comparable holding that explicitly overturns that analysis, or any trend that suggests federal courts are no longer relying on it.

For these reasons, I see Associated Press’ actions last week as having long-lasting commercial, political, and journalistic importance.

Update (June 23, 2008): In a Friday, June 20 posting to The New York Times’ Bits blog, writer Saul Hansell reported that Associated Press and Workbench editor Roger Cadenhead “consider the matter closed” as of Thursday, June 19. Hansell’s post links to Cadenhead’s reportage about the dispute’s end. Cadenhead’s post, in turn, discusses AP’s use of tracking technologies from a company called Attributor, a Redwood City, Calif. company that has had AP as a client since May 2007. (Interestingly, Cadenhead notes, Attributor posted a blog earlier this year that advised its clients to send a link request instead of a DMCA takedown notice.)

Cadenhead also notes that AP already offers fee-based services whereby customers pay for headlines and lede paragraphs. (We presume Cadenhead is referring to AP Exchange or AP Digital.)

Additionally, Cadenhead also mentioned the willingness of parties like the Electronic Frontier Foundation and Public Knowledge to assist his legal fight. Since both organizations seem to choose their issues and legal fights with extreme care, it is fair to say both parties were as interested in the potential for positive publicity as the legal issues.

Finally, Hansell’s report surmises what occurred between AP’s issuance takedown notice of the takedown notices, and the apparent detente late last week. In the end, none of the thorny legal issues got resolved and no one seems to want to discuss the key issues on the record. The veil of silence that surrounds the “settlement” reinforces our conviction that AP was using this issue as a trial balloon, both to gauge public opinion and to use as a test case for future business initiatives.

Copycense™: Incisive IP.™

The news cycle has been abuzz about digital music and iTunes‘ ascendance to a position as the country’s leading music retailer. Likewise, the mainstream press has continued to feed its desire for an iTunes-Amazon.com octagon-style retail death match, and steadily has been promoting Amazon.com’s mp3 download service as a worthy challenger to the iTunes hegemony.

(The music labels, long irritated with Steve Jobs‘ control of the legal download market, silently would approve of such a challenge.)

We don’t see what the big deal is. There are several problems with music downloads, and none of them have anything to do with three-letter acronyms that purport to “protect” the underlying content. The primary problem with downloaded music is that it sucks.

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Due to an unusually heavy past few weeks, we have been unable to post in the manner to which you (and we) have become accustomed. We promise to return to regular coverage as soon as possible.

Copycense™: Incisive IP.™

Primer on Copyright Liability and Fair Use. A quick and dirty guide on copyright provided by the Citizen Media Law Project. Categories: Bundle of Rights; Fair Use & Other Exceptions.

Music Download Warning List. The Center for Democracy & Technology publishes a list of Web sites that promise lots of music, but deliver much less because the sites don’t have the proper licenses to offer the music to the public. Categories: Licensing & Permissions; Music; Web & Online

Copycense™: Incisive IP.™

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The Library of Congress Photos. LoC gets social with a 3,000 image contribution to Flickr … and leaves it to the public to do the classifying.

On Copyright Reform. (.mp3) The Ottawa Citizen sponsors an hour-long debate on copyright reform in Canada. Lots of shouting and interrupting, but may be worthwhile listening if you want to hear frustrated content industry discuss the state of their nation. Check out, however, Michael Geist’s analysis of this session, in which he contends Canadian Recording Industry Association president Graham Henderson and others give tacit support to ISP filtering, which AT&T reportedly is considering. Categories: DRM & Copy Restrictions; International; Music; Politics & Government; Web & Online. (Attribution: ArsTechnica)

This Is Copycense™: Incisive IP.™

Some readers have informed us they appreciate Clippings’ incisive, retrospective commentary about the week in copyright and digital media, but have suggested that we break out some of our longer passages into distinct entries. Doing so, they have argued, will make certain longer entries easier to read, and will ensure that our readers can link to the longer entries without losing them within a broader Clippings publication.

We couldn’t agree more.

Therefore, beginning this week, we will make remix and republish select individual stories from each edition of Clippings, including all our Article of the Week and Quote of the Week entries. These new entries often will add extended commentary and analysis. The remixed versions will be published throughout the 7-day period between Clippings editions.

In the end, we believe this effort will make the content more readable and accessible. Thank you to all who suggested improvements.

In this week’s huge edition of Clippings, we look at registration reform; news media inaccuracy; a challenge to the DMCA “safe harbor”; ICANN seeking independence; and the wireless spectrum auction.

This is Copycense.

Articles of the Week

Public Knowledge. Don’t Trust the Media to Get Copyright Right: Scrabulous Coverage Scores Few Points. Jan. 22, 2008. Often, we have taken the press to task for its frequently errant and one-sided coverage of intellectual property issues. When IP was a backwater issue, poor (and sometimes inaccurate) coverage was a problem, but was not evident. Now IP often warrants front-page, above-the-fold coverage, and the mistakes not only are evident, they are harmful. A news organization’s primary professional objective is to get it right. Writing flowery prose like Selena Roberts is optional. Talking loud and saying little like Stephen A. is optional. Whining while cashing checks like Mr. Tony is optional.

Getting it right, on the other hand, is mandatory.

Marc Fisher got it wrong in a big way last month, likely because he relied on second-hand reporting and did not do the requisite amount of fact- and document checking. Now, as PK points out, several media outlets seem to have gotten the Scrabulous/Facebook story wrong, attributing to an alleged copyright infringement problem what really is an alleged trademark infringement problem. Not only is this unacceptable, it is grossly unprofessional. If the news media can’t get it right, above all else, it’s useless. Categories: Broadcasting & Journalism; Infringement; Trademarks.

Dan Heller’s Photography Business Blog. Proposal for Privatizing the Copyright Registration Process. Jan. 21, 2008. Citing other instances of government outsourcing — including U.S. Postal Service allowing Mail Boxes Etc. and other commercial mail receiving agencies to manage mail delivery and pickup — Heller suggests that the U.S. Copyright Office accredit private sector business to handle copyright registrations. (Although Heller does not mention this specific example, America already is quite familiar with registration outsourcing: domain name registrations are outsourced to hundreds of registrars that are accredited by the Internet Corporation for Assigned Names and Numbers (ICANN).)

We already have some businesses that purport to handle copyright registrations, but many of these firms seem suspect at best. A rigorous accreditation process (similar to the one ICANN uses), overseen by the U.S. Copyright Office, likely would weed out the fly-by-night firms. Further, the U.S. Copyright Office already has received poor marks for its online registration system, so there remains a legitimate question as to whether the agency can implement a solid solution. And online registration clearly is the way to go, since (a) USPS mail to federal government agencies still gets delayed because of anthrax screening; and (b) it’s 2007 and our federal government should have online services like this down pat by now.

Further, broadening the registration process may encourage more people to register their works. Currently, copyright is the only one of the Big Three forms of intellectual property where neither registration nor public review is required prior to the government granting monopoly status. This leads to several problems, not the least of which is a huge orphan works nightmare, and a suppressed, downstream licensing market that suffers because no one can find the correct copyright owner.

This is a marvelous idea in so many ways. Categories: Registration; U.S. Copyright Office.

Eric Bangeman. Debating Copyright Reform: Time for Compulsory Licenses? ArsTechnica. Jan. 21, 2008. Ars reports on a copyright panel convened at the Consumer Electronics Show entitled Washington, Intellectual Property and Your Living Room, which was moderated by Ars editor Kenneth Fisher. The panel seemed fairly balanced, which is unusual for these panels, and everyone allegedly agreed some sort of copyright reform was necessary. Surprisingly, though, compulsory licensing was discussed, and at least one panelist positioned compulsory licenses as a way of providing compensation in light of the fact that copyright owners no longer can control their works.

There are two basic arguments here. On one hand, a compulsory license would force media companies to license their works at an established, set rate. (For example, royalties for cover songs are paid according to a rate set in a compulsory license.) Additionally, it would eliminate the often licensing negotiations, many of which can be ridiculous and random. (The music industry, in particular, suffers this problem when it comes to digital sampling.) On the other hand, U.S. Register of Copyrights Marybeth Peters is on record as opposing compulsory licenses because it hurts “creators.” As we mentioned last week, though, one must be careful with the label “creators”: are we talking about individuals, or multinational corporations that own and control the copyright monopoly? We’re unsure what Peters means when she refers to “creators.”

Nevertheless, this is the first time we recall hearing someone — anyone — talk seriously about compulsory licensing as an option worth investigating. Also, it is the one of the first times we can recall any person who deals with copyright for a living bluntly proclaim that control of protected works no longer is possible or realistic. Categories: Bundle of Rights; Licensing & Permissions; U.S. Copyright Office.

Quotes of the Week

“One way to look at plaintiff’s difficulties here is as further evidence of the disproportionate difficulties African-Americans have had in getting the benefits of IP protection.” — Rebecca Tushnet.

43(B)log. Strikeout: Baseball Player’s Claim Against Cards Fails. Jan. 5, 2008. Georgetown law professor Tushnet (no, the junior Tushnet) ends her analysis of a lawsuit against the Topps trading card company with this interesting comment. The lawsuit (which was based on right of publicity, trademark and related claims) was brought by the daughter of legendary Negro Leaguer James “Cool Papa” Bell, alleging that the trading card company did not have permission to print Bell’s likeness on a trading cards released earlier this decade. Tushnet’s summary says Bell granted to the Baseball Hall of Fame permission to use his name and likeness on various products. (Bell was inducted into the National Baseball Hall of Fame in 1974.) Tushnet’s comment raises interesting issues about IP protection and race.

Stories are legion about the extent to which creative, technical, or scientific achievements by African-Americans have been appropriated without initial or residual compensation. And strains of complaint often make it into the lyrics of contemporary music. (Even Jay-Z once said in “H.O.V.A.” “I’m overcharging labels for what they did to the Cold Crush.”) We would be very interested in seeing any articles, reports, books, or scholarly work that addresses this phenomenon and estimates the lost value therefrom. Categories: Licensing & Permissions; Trademark.

Copycense: Incisive IP.

(Clippings continue on the next page.)

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Editor’s Note: Site Check is a special section that shares with our audience noteworthy Web sites or user-generated content. Previously, a part of our weekly Copycense Clippings coverage, Site Check now is a special section that appears on Thursdays.

If you have or can recommend a Web site, online project, podcast, screencast, or video you feel is a noteworthy contribution to the public debate about creativity, code, and content, please let us know. We gladly will attribute all contributions, so when sending in a Site, please include your name (or screen name).

CD Liner Notes of the Distant Present. A hilarious parody of the RIAA’s business model, set out in the form of compact disc liner notes. Categories: Music; Politics & Government. (Attribution: Boing Boing)

I Can’t Stop Thinking #6. Comic and visualization guru Scott McLeod draws and talks about Napster, artists, and record buying economics … back in 2001. Six years later, it still remains relevant. Categories: Music.

RIAA Declares Using Brain to Remember Songs is Criminal Copyright Infringement. NewsTarget.com’s satirical treatment of the RIAA’s litigation campaign (albeit based upon the incorrect reporting that RIAA claimed ripping to CD is a copyright infringement). Categories: Broadcasting & Journalism; Cases & Litigation; File Sharing, P2P & Downloads; Music. (Attribution: Bambi Musings)

Copycense™: Incisive IP.™

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