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Print 32 comment(s) - last by Hawkido.. on Jun 20 at 9:42 AM

Bloggers vent their frustrations at the AP's legal aggression

The Associated Press (AP) is a leading source of online content, but it charges a hefty fee for the rights to it.  With growing competition from state services and criticism on its pricing, the AP is growing concerned that its bottom-line is slipping. 

In response, it began to escalate its legal campaign against the blogging community, which it feels is undercutting its revenue by reposting article snippets without paying.  However, the AP's content has become such a fixture in the internet world that this campaign may lead either to dangerous campaign against major sites such as Wikipedia, or to a double standard in which small blogs are attacked, but major sites are spared.

The blogging community is striking back at what they feel is an atrocious abuse of fair use via Digital Millenium Copyright Act (DMCA) takedowns.  They have launched a campaign humorously entitled "FU AP".  Leading the campaign is the BuzzMachine's Jeff Jarvis.  He writes that he once hoped that the AP would survive and overcome its challenges, but he's reconsidered and may want to take that back. 

He states, "The AP has filed truly noxious takedown notices against Rogers Cadenhead’s community-created Drudge Retort, arguing copyright violations for quotes from 33 to 79 words long.  For shame, AP."

Jarvis says the AP "leaches off original reporting and kills links and credit to the source of that journalism."  He says that while it is legally entitled to do so, in that it pays members to reproduce their reporting, in doing so the AP is violating the ethic of linking news, a guiding tenet of the online news culture.  Jarvis suggests that news aggregators such as Google News, Inform, Daylife, and Pro Publica start linking only to original sources, skipping the AP entirely.

Google's deal with the AP is among the items he objects to.  He says that Google should be linking to original content, not licensing to the AP, though he acknowledges that the AP deal significantly jump-started the site.

The call to arms is continued with a statement, "In its complaint against Cadenhead, the AP is flouting fair use and fair comment. It is ignoring the essential structure of the link architecture of the web. It is declaring war on blogs and commenters. So let’s fire back. I urge bloggers everywhere to go to the AP and reproduce a story at length in solidarity with Cadenhead and Drudge Retort."

Jarvis proceeded to repost a 146-word long section of an AP article as an example to his readers.  He then provided links to the original article, a story from Gazette Online about the flooding in Illinois, which he says is far better than the AP's "homogenized version" of the story.  He encourages other bloggers to join him in fighting the AP's revenue scheme by linking to the original source, putting the power back in the hands of the writers and taking it from the redistributors.

Along with Jarvis's new campaign, the owner of the blog most recently attacked by the AP, The Drudge Retort, posted a response to the AP's claims.  Rogers Cadenhead, owner of The Drudge Retort, states that the AP has used DMCA takedown notices on 6 of his blogs which contained AP excerpts between 33 and 79 words with links to the AP article.  Only one of the six took the AP headline, the other five had user-created headlines.  Cadenhead's site encourages its over 8,500 users to post blogs.  Of the blogs which the AP is demanding the site take down, two of them were written by Cadenhead himself, while the rest were user created.

The AP also ordered a takedown of another blog, for a user comment, which included two paragraphs from an AP article.  The AP states that the blog excerpts and the user-commented blog amount to "hot news' misappropriation under New York state law."

Ironically, Cadenhead points out, the original content creators of the stories encourage reuse in many cases.  The original source of two of the disputed articles was Yahoo News, which encourages bloggers to use its items.  Two more of the citations were sourced from USA Today, which contains a tool to easily translate articles to Digg or Mixx form.  Attorney Wade Duchene, who had previously assisted Cadenhead in a domain name dispute, is siding with the blog owner, stating that the AP is wrong and that The Drudge Retort's actions are the "absolute definition of fair use."

Cadenhead acknowledges that the law forces him to take down the blogs in question whether or not he thinks they're fair use.  However, he encourages users to file counter-notices to the AP asserting their own copyright.  He also encourages AP's Intellectual Property Governance Coordinator Irene Keselman, author of the letter sent to him, to explain the AP's position in more detail.

As the war of words between the AP and blogger escalates, it brings two things into question -- one, the legality of the bloggers' practice of linking to and posting small excerpts from copyrighted texts, and secondly the legitimacy of the AP's underlying business model, which is accused of disenfranchising both the writers and the citers.  Ultimately, though, the growing debate is proving, above all else, to be unfortunate distraction to the real task at hand -- covering the news.



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RE: How long is it going to take...
By larcen007 on 6/16/2008 4:16:33 PM , Rating: 1
To Hawkidiot -

I disagree - the world's greatest evils are cause by the worst of intentions. Religion is the biggest offender of all. Second is patriotism.

Government should always do something when there is a problem. Doing nothing is not a solution, nor does it help bring about change.

I guess you haven't studied criminology and/or criminal law. A law that punishes law abiding citizens for infractions DOES prevent infractions from happening in the first place - something called the deterrent theory of punishment. There are many factors to consider when commiting a crime - such as severity, certainty and appearance of punishment. Laws will fail because you do not punish enough infringers.

I dont know what you are talking about death. First, you say laws shouldnt punish people, now you are saying that death is an option for punishment. If death were an option for copyright infringement and DMCA, people would think twice before turing anyone in - again, most people would disagree with the severity of punishment, enough so that they wouldn't turn anyone in. In the end, the law fails.

The laws on the books are not equipped to handle the copyright issues of today. It is so easy to reproduce and disseminate copyrightable material - hundreds of years ago - it wasn't. DMCA is an attempt to address it - Congress failed miserably because it gave into special interests, but atleast they acknolwedge a problem.


RE: How long is it going to take...
By Parhel on 6/16/2008 5:22:40 PM , Rating: 3
quote:
I disagree - the world's greatest evils are cause by the worst of intentions.


I 100% agree. "Good intentions pave the way to hell" gets my vote for the "second least accurate" of all cliches. The "least accurate" award is reserved for "that which doesn't kill you makes your stronger."

quote:
Religion is the biggest offender of all. Second is patriotism.


I 100% disagree. How so? I know that religious intolerance is popular on this site, but are you actually suggesting that the majority of the greatest evils are due to religion? Or that religion is shares some relation with "the worst of intentions?" The world's greatest evils? What did the actions of Hitler, Stalin, Mao Zedong or Pol Pot (to name a few) have to do with religion? What about the good that comes from religion? Religious charities are responsible for helping a lot of people.


RE: How long is it going to take...
By larcen007 on 6/16/2008 6:06:47 PM , Rating: 2
I guess its my way of labeling things. There have been many deaths/wars/persecutions over religion. While I am not saying religion is necessarily evil or bad (jury still out on that), it sure does bring a lot of baggage with it when it comes to societal issues. Religion is a private matter, and if it stays there, then there should be no problem. I do not consider my self intolerant of other religions. However, I do not trust any religion. Religion (and patriotism) to me are just ways of distracting people while they are being duped/controlled. Its not to say they don't have their strengths - they do impart some important values to the greatest number of people. There is just a strong possibility that the sheep will stay sheep when the shephard is pulling the wool over their eyes since the sheep have listened to the shephard so much.

I put Hitler/Stalin and the others into the patriotism category. Do "evil" things for the good of the people/your country/your queen, etc. The major reason I put this second is because their "rule" lasted a generation, while religion had its hands on people for centuries.

Back to the topic. The DMCA is a beast. I read it and a few associated cases. Bottom line - the problem is that the DMCA does not strike the right balance between the public and the copyright holders. As a result, way too many people are "infringing" the DMCA. The DMCA is a bad law because it doesn't do what its supposed to do period. Spouting ideological remarks doesn't actually push forward the discussion. The more these remarks are made, the less progress we will make, the longer the DMCA will stick around, and the worse it is for everyone. Why? Because the DMCA is supported by some of the most powerful sepcial interest groups in the US - while we spout platitudes, they dish out cash.


RE: How long is it going to take...
By Parhel on 6/17/2008 12:03:28 AM , Rating: 2
I can respect that answer. Thanks for being willing to have a reasonable discussion about it.

Regarding the DMCA, it's a ridiculous bit of modern politics. It might not be so bad were it not for the fact that corporations merely threaten people with a lawsuit and a de facto policy is created, because nobody wants to get sued.

Case in point, the apparent status quo with aftermarket inkjet cartridges. Manufacturers are chipping their cartridges, and the smaller third parties are reluctant to make those chips in fear that they will be sued under the DMCA. This despite the fact that the one lawsuit I'm aware of that ever tested those waters was shot down:

http://www.eff.org/cases/lexmark-v-static-control-...

There ought to be a counterpoint to the DMCA that prohibits companies from using anti-consumer devices like that.


By larcen007 on 6/16/2008 6:50:31 PM , Rating: 1
"That which doesn't kill you makes you stronger" is a good one. Tell that to an AIDS patient who successfully fights off an infection but then dies from the common cold (I guess you couldnt because he would be dead).

These cliches have something in common - can't quite put my finger on it. The "stronger" cliche is supposed to make the failure spin his failure into a success - a self-deception, or maybe a mind trick to help the failure move on.

The "intentions" cliche is supposed to make people think twice before acting - it almost sounds conservative. Too bad conservatives don't listen to it. Actually, I would say that only thing that makes something evil is the intent behind it, and that people drum up a "good intentioned" reason to act to cover up the evil intent - another self-deception.

I guess cliches are just mental short cuts for lazy thinkers. And if some charismatic leader knew all the mental shortcuts (and knew when and where to use them), he could direct the sheep to do his bidding.


RE: How long is it going to take...
By Hawkido on 6/17/2008 3:41:10 PM , Rating: 2
quote:
A law that punishes law abiding citizens for infractions DOES prevent infractions from happening in the first place


Anytime you punish a law abiding citizen via an unjust law you create a criminal where there was non before the law.

As for deterrent, You cannot deter a criminal from breaking the law Criminals don't care about breaking the law, they only care about not getting caught.

Law abiding Citizens won't break the law even if there were no laws. Thus the rise of the notion of Common Law. Enforcing a law that can only target law abiding citizens, only punishes the innocent or the accidental infractions. The delibrate malicious infractions go unpunished, because they loose no sleep over their acts, and they approach law breaking with the intent of circumventing detection of their acts and masking the fact that they were the purpetrators. These people are the ones that should be destroyed as garbage is destroyed. Copyright infringment isn't supposed to target the home user who makes copies of his friend's CDs... It was never meant to. It is after the Blackmarket vendors that pirate in the millions of copies. The ones that sell pirated movies, music, books etc... Here is the only valid case for a law suit. Here you have a customer willing to pay for the product and sometimes even believing they are purchasing the legal copy, when instead they are purchasing pirated goods. Here the related companies can say this is profit lost. For the home user they can only suppose profit is lost, as there was never an intent to purchase by the reciepient. Still Illegal? Yes! Worthy of an indictment? No! Worth of a $100,000 lawsuit(not counting Legal fees)? No! Target the doofus in Taiwan, Korea, China! The guy who is mass producing replicas and selling them! There you have someone that has no justification for him actions. If you start punching people for grey infractions and not even going after the Black infractions (as seen through a black-White view of the law) you are merely supporting the idea that only the criminals get away with breaking the law. For the most part honest people get screwed every time, not the criminals!


RE: How long is it going to take...
By larcen007 on 6/17/2008 7:09:30 PM , Rating: 2
First, lets split crimes into two cateogories - mal in se and mal prohibitm.

Lets back up further - an "unjust" law begs the question. What makes up a just criminal/civil law? You can't answer a gray question with a black and white answer. What standards of justice are you using? Justice as fairness, justice as retribution, etc.

Yes - deterrence works for most things - whether its a just law (like the prohibition against murder) or the unjust law of DMCA (for the record I agree with you - the DMCA is a bad law, but your point implies the following statement - people don't become criminals - its (good or bad) laws that make criminals).

People arent born with reason - they are born with the capability of using reason. Some people choose to use it, while other disregard. Nobody always acts within reason, because personal preferences/animosity/desire sometimes dictate what people do. For some, the threat of punishment for infringing a just or unjust law is enough to stop the "bad" act - to put a person's animosity/preference/desire in check. The assumption is we are rational beings (which you seem to agree) - we compare the pros and cons in committing an act, and the threat of punishment is just one factor to use when calculating whether to commit the act. Deterrence works.

And you must not have read my response closely - there are 3 important parts to deterrence if it is to be successful - certainty of punishment, severity of punishment, and appearance of punishment. Again, put deterrence in your rational calculator. If people know there is a likelihood that if they commit the act there will be punishment AND THAT THEY WILL BE CAUGHT, they are less likely to do it. No likelihood of punishment and of being caught, then there is no real reason to follow the just or unjust law. If the severity of the punishment is too little (a slap on the wrist), people will act accordingly. If it is enough, people will take note of severity of the punishment and calculate accordingly. And if all this punishment happens behind closed doors where the public cannot see, then the law fails because it fails to successfully give notice to the public of what conduct is acceptable and unacceptable.

If you are still having trouble with deterrence - i will be more than happy to try to have a rigorous, structured conversation.

There is sooo much confusion regarding our legal system. In the AP case - it is the AP itself that is doing all the policing here - not the state. So techinically, there is no waste of a state's resources with regards to fighting crime - the AP has to put up or shut up - the way it should be. The AP is only making lawywers richer. So - huge difference between criminal law and copyright law for the purposes of the AP. This is not a black/whiet view of the law - its more the civil/criminal view.

The AP is not a case of someone innocently believe they are buying a product. Stop mixing apples and oranges - the facts are not the typical bootlegging facts. Stop trying to make up facts to suit your own idealogical end.

The problem with going after someone overseas is that US has no jurisdiction over them, say in China. There are sovereignty issues involved that go beyond the scope of this discussion - which is about bloggers using AP articles.

Once you focus on the facts and issues of this case and stop firing all the distractors and ideology, maybe we can have a rational discussion.


RE: How long is it going to take...
By Hawkido on 6/18/2008 2:58:59 PM , Rating: 2
Taking what you said:

Deterrence works for rational people.

Deterrence doesn't work for irrational people.

Criminals are not rational people.

Even Rational people have irrational bouts and commit crimes.

and your conclusion is deterrence works.

If all crimes are comitted by people who are in an irrational state temporary or otherwise (I agree) and deterrance only works on poeple in a rational state (I agree), how then can you make the arguement that deterrance works?

Unless you are making the subjective assumption that deterrance keeps people in a rational state... which it doesn't, else deterrance would actually work 100% of the time.

I am not attacking you, just that which you have been taught. I actually agree that deterrance is a needed tool in Law enforcement, but without the enforcement part the deterrence is a joke.

As to the 3 parts of deterrence, I agree completly. However the certainty of punishment is never certain. The severity of punishment is often mitigated by bogus pleas. The appearance of punishment is invisible in today's society. Punishment should be public and humiliating (to the degree of the crime) Executions should be public, but as clean and swift (read "not tortourous") as possible. I do not see executions as punishment. Society just has to put down rabid dogs from time to time due to the danger imposed on society.

As to Civil law, punitive damages should be capped to the extent of the damages (Death and permanent bodily harm are subjective).

If someone missappropriates 750 dollars of music. The punishment should not be the loose their house.

Overpunishing the few you catch, is like hitting one nail really really hard and seeing if the rest of the nails hammer themselves in.

At some point the music industry needs to be recognized as failing to properly secure their own property. I believe there is precedence. Just as financial institutions as penalized for not securing financial data. It is a crime to take copies of this data from FI's, but FI's as responsible to provide reasonable security for this information, else they fail to provide the appropriate level of deterrence.


RE: How long is it going to take...
By larcen007 on 6/18/2008 7:07:47 PM , Rating: 2
Actually - that is not what I said. Or rather, we are using rational to mean two different things. Criminals are rational in the sense that they weight the pros and cons of committing an act. I am not using the term "rational" to means values/goals - what a "reasonable person" is. What makes a criminal a criminal is that he gives different weight to different factors. For example, drug addicts give more weight to the pros and less weight to the cons because of their addiction. Each human being is (hopefully) different in that they have different preferences which each individual values and weighs differently. Some people even give 0 weight to laws. Laws are just a factor to help in the human computation of whether to commit an act.

So - my argument would go

All humans are calculating beings.
All humans have different preferences.
All humans give different weight to each preference.
Laws are created to be used in calulating human behavior.
Criminals are humans.

You get the gist - I could go on. Deterrence "works" for everyone because people give consideration to laws. Criminals just give less (or no) weight to laws than non-criminals. Its about calucalating behavior and controlling it buy threatening punishment for socially unacceptable behavior. Its not about being a "rational person" - the assumption is that humans are calculators and that humans giver different weights to different preferences, and laws play a role in calculating behavior. Deterrence does not require 100% success to work.

Deterrence requires adequate enforcement to work (goes toward certainty of punishment) - no enforcement, and no one respects the law.

The appearance of punishment is invisble? Just look at your nightly news (I am in NYC - maybe the nightly news is different where you are).

Punishment does not only come in the form of jail time - the social stigma of being a criminal is hard to rub off. But this isn't the law's fault - its people's fault. There is enough blame to go around - prosectuors, defense attorneys, policemen - but these are issues that go outside the law.

How is punishment to be carried out? "The punishment should fit crime" is a meaningless statement becuase it doesnt tell me how to punish. Do we do "an eye for an eye" style? Kill murders - rob thieves, rape rapists, etc. Do we translate the crime into time incarerated? Do we just kill anyone who commits a crime? Lots of problems with each category - again outside the scope of this conversation.

Two general types of damages - compensatory and punitive. compensatory pretty much covers the harm done - you break my arm, you pay my bills relating to that arm and maybe some time i didnt work as a result. Punitive damages are to punish the bad actor for his actions. Consider a CEO shipping out tomatoes KNOWING that there would be problems with viruses. Should the damages just be the cost of people's medical bills, or do we need to send a message to CEOs that they cannot just ignore these viruses? While I dont agree that punitive damages should be capped to the extent allowed by the damages, there should be a cap of some sort, but its definitely more than actual harm.

If someone steals $750 worth of music, they shouldn't lose their house - there seems to be an incongruity between the act and the punishment proscribed by law. This goes to whether this is a bad law or not - not to whether the law works.

Overpunishing the few you catch is trying to make an example out of few so that many will get the message. Nothing wrong with that - a bully doesn't need to pick on every school kid to be a bully - he just does it to a few kids, and the others get the message - don't mess with the Zohan.

In general the problem with the music industry is that they don't want to change. It's been making money for so long - has so much invested in doing business a certain way - that it went so far as to legislate to control it. Why fix something that is not broken - and if other people are breaking it, lets stop them. The music industry is like a monopoly thats trying to maintain its market share by buying Congressmen. It tried to stop the spread of MP3s but failed. In fact - in all these cases, the copyright holder (AP/music industry) should pay punitive damages - its the only way they will get the message.


RE: How long is it going to take...
By Hawkido on 6/20/2008 9:42:41 AM , Rating: 2
quote:
All humans are calculating beings.

DUH Nothing to do with crime or deterence.
quote:
All humans have different preferences.

DUH Nothing to do with Crime or Deterrence.
quote:
All humans give different weight to each preference.

DUH Nothing to do with Crime or deterrence.
quote:
Laws are created to be used in calulating human behavior.

Wrong, Laws are there merely to reflect whether you are living up to the expectations of a healthy member of Society, and to specify a punishment to aid in reforming you to within parameters. To prevent a crime before it happens, you have to commit a crime.
quote:
Criminals are humans.

DUH was this in question?

quote:
Its about calucalating behavior and controlling it buy threatening punishment for socially unacceptable behavior.


See, here is where you are getting your Psychology, Criminology, and Law Classes all jumbled up. It doesn't matter why someone violates the law, only that they did (exceptions included for those who work within the greater spirit of the law, e.g. speeding so a life may be saved, etc...). If you (as a legal entity)try to prevent a crime from happening, you commit a crime. Really think about this. It is true. A crime has to be committed before the law can take action, else it is illegally detaining someone, violating someone's right to privacy, or harassing/stalking someone. So, if the law cannot act on someone till they violate the law the law cannot possibly prevent a crime. I pull my hair out when I hear someone say "Why didn't the Cops prevent this!" The Answer is they cannot prevent crime. Only apprehend criminals. The School shooting at Virginia Tech... until the guy formed the plan to go on a shooting rampage, he had commited no crime. Since his plan was kept a secret from everyone else (not shared, nor discovered) noone was able to intercept him before his plan was executed. I believe the only trace of his plan they found was a vaguely suicidal online message, and a videotape that was just a weird college kid spouting garbage and playing with a gun. The Online suicidal message was vague at best and was reported, but being suicidal is not a crime. the video wasn't discovered till after the crime... I don't think the penalty for the crime even entered his head, his only concern was how to avoid being caught.


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