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Scott Hilton

AP's Legal Challenge to Google Cross-Examined

Written by Scott Hilton
4/10/2009 10 comments
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The media are making much ado about a recent resolution by the Associated Press to pursue Websites that copy entire AP articles without permission. Does the AP have a case?

The AP is developing a tracking system to find Websites that clearly violate its copyrights. But it's not these clear-cut copyright thieves that everyone's talking about. Those sites are very small fish. Instead, everyone's looking right at Google (Nasdaq: GOOG), though it's unclear what tackle the AP thinks it can use to catch such a big fish.

Flash-back to 1918. During WWI, the AP sued William Hearst's International News Service (INS) for stealing the AP's hot news after INS was banned from Allied telegraph lines. The Supreme Court famously found that there is no copyright on factual news events and that INS had not infringed any AP copyrights.

The AP still won, however, because a divided court decided to give hot news some limited protection under a newly devised doctrine of misappropriation, a branch of unfair competition. Thanks to the Erie Doctrine, unfair competition claims are now decided under state common law, but INS v. AP has become the source of a lot of state common law in this area.

Fast-forward to 2009. It seems pretty clear that the AP doesn't have a copyright claim against Google for several reasons, the most obvious of which is that Google already licenses the AP's content. This license allows Google to post full AP stories in Google News.

There's been some speculation that the AP may be targeting the inclusion of AP stories in Google search results, but that seems unlikely. As Google stated in a response, if the AP doesn't want to be included in search results from Google or other search engines, it can use a simple robots.txt file to block the search engines' spiders from indexing its stories. But that seems like a net loss for the AP.

Looking past Google's license with the AP, legitimate news and search sites seem to clearly fall into copyright's fair use category. While courts have made it clear that each fair use case must be evaluated individually, the fair use factors are clearly defined in the Copyright Act, under 17 U.S.C. § 107. The factors include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the work used, and the effect of the use upon the market for the original.

While a court could surprise us, these factors seem to overwhelmingly favor legitimate aggregators and search engines that use only a small snippet of AP content and link to the original story.

This is probably the reason the AP is trying to draw attention away from fair use. AP senior vice president Sue A. Cross said, "This is not about defining fair use." If the AP is serious about going after a big fish like Google or Yahoo Inc. (Nasdaq: YHOO), it may try using the same tack it used in INS v. AP by using an unfair competition claim.

It's telling that the resolution that the AP board of directors passed is to protect AP content "from misappropriation on the Internet," mirroring the winning legal theory from INS v. AP.

The AP board further agreed to "seek legal and legislative remedies against those who don't [license its content]." Perhaps the AP is hoping, with the current precarious state of the newspaper industry and the government's disposition for bailouts, that it can get some sympathy from the legislative branch if the judicial branch doesn't cooperate.

And that could be important: Whether or not the AP is trying to redefine fair use, and whether it does so through the courts or through the legislature, if the AP is successful, it may change the Web dramatically.

— Scott Hilton is employed by Kunzler & McKenzie Intellectual Property Law.

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robjvargas
IQ Crew
Monday April 13, 2009 9:22:51 AM
no ratings

As already stated in the article, Google licenses the AP news content.  It's bought and paid for the right to provide the news articles.  So what has Google, even thoeretically, done wrong?  if I were to search for, say, "octomom", and one of the results that appears is a link to some small blog that posted an AP article word-for-word without permission, what is it that Google is guilty of doing wrong?

Not one thing, so far as I can tell.  Plus, I'd wager, the very people complaining that this *is* something wrong, they're the ones using Google to find these plagiarists and infringers of copyright.  IANAL, but it seems to me that DMCA would shield Google anyway.

I think others have hit closer to the truth.  Just like RIAA, and like MPAA before it, the AP finds itself unable to maintain control in an age of the free flow of information.  The walls of the monastery have broken down, and they find themselves unable to find their way now that their priesthood is subject to the trials and tribulations of the real world.  And when they find themselves without the tools to live in that real world, as the quotes from AP representatives makes clear, they will seek to alter the real world, rather than fight to live within it.

It's up to us to stop them.

Brian Newby
IQ Crew
Sunday April 12, 2009 7:18:36 PM
no ratings

Maybe this is just a scream to be relevant, a cry for help.  If the AP vanished tomorrow, would there be much of a ripple?

It's almost as though this is a set-up with the hope of being acquired by one of the aggregators.

gowriraman
IQ Crew
Sunday April 12, 2009 8:25:32 AM
no ratings

The big guns of the media appear to have missed the boat of internet proliferation. Perhaps their corporate houses were counting the bucks in their custody, when the internet was springing up and spreading fast. It is possible the sales from the media are coming down and they need somebody to blame, choosing google to bear the brunt.

Further I find google only provides a gist of the news always linking back to the original content. I feel in fact it is driving back readership to original source of news.  Ultimately the newspapers that survive are the ones that understand digital media.    

andres
Researcher
Saturday April 11, 2009 8:17:55 AM
no ratings

Hi Scott,

I do understand AP’s sensibility towards this issue. It comes to a point when it doesn’t matter if technically content producers can block their material from being reproduced. There should be a standard ethical procedure and Google, as recent history has told us, is not interested in such. If we remember the controversy regarding authors when Google Books was launched―or the problematic social issue that was created when Google Street View allowed pictures from various corners of the world― we can assert that Google believes firmly in launching first and asking questions later. When it comes to a business as journalism, the odds doesn’t favor the source of information at all.

Leland
IQ Crew
Friday April 10, 2009 4:28:08 PM
no ratings

I am a firm believer in knowledge workers getting paid for their work. But that said, there HAS to be a better model than just suing your own subscribers, or potential subscribers to make it happen. Maybe it's time for AP to have different 'grades' or 'models' of content. Maybe it's a synopsis of the article for free, with a link back to a subscription site for the full article. Maybe it's that the free content is subject to annoying, interrupting advertising, but a licensed user can present the content without advertising. Whatever model they choose, I encourage them to lean more heavily on the carrot than the stick. 

 

googlemag
Rank: Cave Painter
Friday April 10, 2009 3:40:03 PM
no ratings

All these matters is posed by internet unsecurity ,ithink we've to review the internet law in order to better protect online contents , it's worth to urg blogging platforms like blogger , wordpress etc toverify each content published by bloggers on their blogsin order to make ther job easier .

DavidSilversmith
Thinkernetter
Friday April 10, 2009 2:00:24 PM
no ratings

The Associated Press is following in the footsteps of the Recording Industry (RIAA) and trying to ensure that their members and the employees of their member organizations get paid for hard work.

Yesterday I was "treated" to the opportunity to listen to some guy at Starbucks loudly rant and rave about a co-worker who had stolen his idea and taken all the credit.  I actually spit out my coffee (fortunately I was sitting alone) a few minutes later when he told his buddy that he would make a CD of all the songs he downloaded - no need for his buddy to buy those songs.

What a double standard!

  • When I work hard - nobody should copy my work.
  • When OTHERS work hard - I can copy their work.

I'm not sure that the AP, like the RIAA before, have taken the best approaches - but gosh darn they should defend their right to be paid for hard work.

 

 

donaldleegraham
Rank: Cave Painter
Friday April 10, 2009 1:15:10 PM
no ratings

I'm going to put the AP in the same category as the RIAA, MPAA & Newspapers. These media resources all are having a hell of a time trying to keep up with changes in trends and technology over the last several years. And no matter what there will always be someone trying to steal or rip off you. While I think it is important to protect and license their content so they can make a a living and sustain a company, I think there may be a more profitable solutions.

For example the RIAA has always had a ton of issues with people taking their music and dupping cassettes, ripping CD and sharing MP3s across P2P. Policing content such as the RIAA has been trying to do for years has been is extremely costly in resources and time. The reality is they really only prosecute a small percentage of the people and they only go after the big fish and sometimes they win and sometimes they don't (especially when they use illegal methods of gaining evidence ;-). What good has this policing done? People still rip CDs, strip the DRM off of MP3s, share via P2P, etc...

I think the AP should still police their content, but what if their main focus was to revised their business models so a blogger, news sites, etc... could use their pictures without having to spend an arm and a leg or their first born? Maybe charge an annual or monthly fee based on an assessment of the source who wants to license their work at an affordable rate and take some of that money poor into their policing efforts and use it to market the new solution to these news sources, bloggers, etc... Its the "Carrot & Stick" approach.

I'm not saying my suggestion is perfect... I'm just saying its something that may be an idea to consider.

And my $0.02 about going after Google... it won't be successful

 

IronHead83
Rank: Cave Painter
Friday April 10, 2009 11:56:42 AM
no ratings

I would think that the AP is going after the other aggregators of news, but just using google to get major publicity. This would be somewhat like the theory that Microsoft brought suit against IBM (through SCO) in order to slow or suppress the use of Linux.

googlemag
Rank: Cave Painter
Friday April 10, 2009 8:49:46 AM

It's a good idea from the Associated Press "AP" because most of the online contents are violated the right , how hard journalists do efforts to get news and how many times do they take to write their reviews and a slmall blog come to copy and past it to their content , it's really not honnest .

I think we have to have something like Blog editors which will be a market for blogger to buy article with less costs like 5 to 10 dollars per articles in order to enrich their blogs in the right way .

I'm going to discuss it to the investors .

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