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[Sorry, earlier I had some versioning issues with this post as it reverted to previous iterations (user error, I’m sure). I think that’s cleared up now.]
From Robert Cox’s post on the back story of how the AP and the Drudge Retort came to terms comes this quote:
“AP’s position that there was no fair use exception for a post which contained only the verbatim AP headline of a story and the lede paragraph. AP’s argument has been that a large percentage of the value of what they deliver is carefully packaged in that content and so the publishing of that information without permission was a copyright violation.
I’m trying to remain open-minded until I hear from the AP their specific guidance on what they believe IS fair use. One thing seems clear, however. They view this as a legal issue, not an issue of common sense the value of links in an attention-based economy.
But something else is also clear to me. They can do whatever they want. It’s their content. We may believe content wants to be free, but if those who own it don’t want it to be free, they can hire an army of lawyers to argue that belief. You need to be prepared to do similarly if you want to fight for your beliefs. If AP wants to, they can rope-a-dope this issue for a decade (or as long as newspapers are around). Personally, I don’t want to spend another dime on attorney fees testing anything — however I would contribute to the cause.
The reality is, there are lots of sources to link to who would welcome the Google juice that comes from bloggers linking to them. The Wall Street Journal goes out of its way to tear down its paywall for bloggers. So if the AP wants to drive traffic away from its member newspaper sites and to content from Reuters, Dow-Jones, the New York Times and the original news stories on which much of the AP stories are based, then why bother fighting them? (That was a rhetorical question — I actually know the answer, but really don’t care to engage in the debate.)
Bonus links: While I haven’t had time to blog about this issue during the past week (nor, frankly, the desire to jump in until now), I’ve read some great analysis — along with way too-much of what Dave Winer calls “breast-beating” to attract traffic. Two posts written by Scott Karp were especially insightful to me: “Associated Press Hands Local And National News Sites An Opportunity To Get Links And Traffic” and “Connecting The Dots Of The Web Revolution.” Also, Dave Winer suggests this morning that, “(it would be great to) have a discussion, even an argument, without the posturing and breast-beating. It’s all bluffing, a play for more attention, page-reads, flow, money.” I agree, but am not sure if I can always discern the difference between arguing and breast-beating. Oh well, enjoy the day.
The question: Can you link to an AP story and include a brief excerpt?
Why it’s news: Late last week, a portion of the blogosphere blew-up when the AP sent a takedown notice to the website Drudge ReTort (a Drudge Report parody site) asking it to remove some links to AP stories that included quotations from 39-79 words. After the near-universal lambast, the NYTimes reports today that the AP has backed down. The paper says AP hopes to come up with something that will accomodate bloggers (it is meeting with the Media Bloggers Association — I’m a member), but Jim Kennedy, vp and strategy director of the AP, told the NYT, “As content creators, we firmly believe that everything we create, from video footabe all the way down to a structured headline, is creative content that has value.”
The answer*: Yes you can link to an AP story. You CAN’T reproduce a story, but you can summarize it. Furthermore, linking to an AP story provides value too AP and the AP member’s site to which you are linking. I’m not a lawyer, but I know enough about this issue to question whether or not a “link” and brief excerpt from a story — especially one that you are, in essence, “enabling,” “reviewing,” or even “recommending” a visit to the article — is fair-use. More importantly, to win a lawsuirt, the AP would have to show your link harmed them or their members. Sending traffic to or providing an SEO-boosting link to their websites is a benefit to AP, not a harm.
What will happen? Jeff Jarvis is calling on bloggers to stop linking to AP. Michael Arrington agrees. It will be hard for me to avoid linking to some of their stories on some of the sites my company helps to manage, but we’ll give it a shot. In the future, perhaps media company lawyers will take time to consider the unintended consequences of rapid-fire take-down notices.
*I am not a lawyer. This is my opinion. Before you follow any advice you pick up on the blogosphere, check with you own lawyer.
Via PaidContent.org, comes news (I guess it’s “news” that the Financial Times and Wall Street Journal are reporting what every Apple rumor site has been saying for weeks) that Apple will announce a rental option for some video purchased via the iTunes Store. However, there’s a new twist to the report today: At least one studio, 20th Century Fox, will start adding an MPEG-4 version to DVDs it sells, allowing purchasers to easily transfer the movie to iTunes or their iPod/iPhones. According to FT.com:
“A digital file protected by FairPlay will be included in new Fox DVD releases, enabling film content to be transferred or “ripped” from the disc to a computer and video iPod. DVD content can already be moved to an iPod but this requires special software and is considered piracy by some studios.
Many people who read that last sentence will know what it means. But if you don’t know, you can find out by clicking over to this website to learn about HandBrake, an open-source, GPL-licensed, multiplatform, multithreaded DVD to MPEG-4 converter, available for MacOS X, Linux and Windows.
For the record, in my opinion, it’s crazy to call what you do with HandBrake piracy. Converting a file is not piracy — it may violate some obscure and legally-dubious terms of usage agreement, but it’s not piracy. You can do perfectly legal things with such a file. Or you can do illegal things, like try to re-sell it. The act of trying to re-sell such a file is piracy — not the conversion of the file.
Of course, I’m not a lawyer, so what do I know? Rather than a legal confusion, mine may be merely a confusion of logic. However, I find it an intellectual challenge to understand how I can be pirating something when I purchase a digital file on a DVD and convert the file into another digital format merely for the purpose of watching it on a digital device other than my TV, like a video iPod or iPhone — or on my computer without having to lug around DVDs. I’m not selling copies or even letting others borrow the movie — something I could easily do with a physical DVD. I’m merely transferring digital media I’ve purchased to another device for personal convenience — a variation of time-shifting, which has been determined to be legal. (I guess this makes me what Fake Steve Jobs calls a “freetard.”)
With music files, the industry has pretty-much given up their efforts to turn their customers into criminals when they decide to transfer their purchase between listening platforms. Recording industry schemes like Apple’s ironically-branded FairPlay DRM are slowly going away. (I purchase DRM-free music through Amazon.com. Update: And now I can buy even more DRM-free music via Amazon according to this press release announcing that downloads from Warner Music Group’s vast catalog are available in MP3 format from Amazon starting today. My guess: Anticipate follow-up announcements from all of the other usual suspects, including Apple and Walmart.) It will take a decade or longer, but I’m sure movie studios and, if they actually become popular, eBook publishers, will go through a period of attempting to “protect” media files (translation: keep you from reading what you buy for a Kindle on any other eBook reader). Ultimately, publishers and studios will understand why it makes sense to let their customers buy digital versions of movies or books one time and then view/listen/read it on any digital platform they choose.
(Note: For those who think I might not understand the differing value of content offered in different forms, let me be clear: I’m referring to various “digital” formats of the same digital file. I’m not suggesting that I gain the right to download the movie free because I paid to view the movie in the theatre — however, I think that would be a clever marketing strategy by studios. Here’s a slogan for them: Buy it once, enjoy it forever. But unfortunately, if they did that, the writers wouldn’t have anything to strike about.)
Perhaps it’s because Canadians are a lot more honest than other North Americans, but I suspect the Canadian-government funded research study (here’s a link to the study, itself) into the effect of peer-to-peer music file-sharing on the purchase of music would be replicated in the U.S.
It’s one of those classic counter-intuitive findings that, well, if you think about it, is actually intuitive (unless you work for a record label). Here’s the conclusion of the study (as summed up by Jack Kapica):
“P2P file-sharing does not put downward pressure on purchasing music, as the music industry has insisted for years. In fact, it does just the opposite: It tends to increase music purchasing.
I have no doubt that the RIAA and the rights organizations will throw lots of money at creating surveys (or spin) that will rebuff or undermine this research. I suspect (as would my fellow armchair-economists who believe we are experts because we read Chris Anderson’s The Long Tail) the record labels can quickly show that the increased purchasing of music is not occurring among the blockbuster hits (the kind of music where they make their money), but along the long tail. In other words, they may believe the findings of the Canadian study but realize (from their spot on the “demand curve”) that it does them no good.
Personally, I can look back over the last five years and point to literally hundreds of dollars of purchases I’ve made because I can sample music in new ways via the web. In my case, I am sampling music via Last.fm or the massive sample file the SXSW folks put together each March. So, while I do not actively participate in anything that can be construed as an “illegal” file-sharing network, I can understand how having more exposure to an unlimited supply of music will result in the increased purchase of a small sub-set of that music.
No doubt, economists have a term for this behavior. If not economists, I’m sure there’s a German word for it.
The other day, I speculated-out-loud that Apple may have grounds to sue Universal for factors related to “restraint of trade” in not allowing DRM-free music to be sold via the iTunes store while opening up such an option to nearly all other online retailers of any heft. (I admitted — and still do — I have absolutely no knowledge of the law surrounding such an issue, but I do recall “restraint-of-trade” being a central-focus of legal and regulatory battles in the book-retailing industry whenever one channel of distribution appears to gain preferential treatment from publishers or wholesalers.)
However, after thinking about it some more and reading articles like this one in the LA Times that re-hash the conventional wisdom that Universal is using this as some type of warning-shot against Apple, I have thought about it some more and come to this conclusion: Why should Apple give a rip about how people purchase DRM-free music? They should be encouraging Universal to do this and hoping that Walmart, Best Buy and anyone else who can sell DRM-free music will be as successful as possible.
Why?
In reality, Apple doesn’t make that much money from selling music. I once wrote about 10,000 words pointing out how Apple’s podcasting strategy, in which they support the RSS-distributed delivery of what is, for the most part, free music and programming, is a winner for them because, duh, Apple is in the business of selling hardware that organizes and plays music — the “content” part of iTunes is not their business. I won’t repeat the economics of this, as I’ve covered it before, but believe me, the margin Apple earns on selling music is a microscopic fraction of the margin they earn on selling an iPod or iPhone.
In reality, Apple wants you to purchase DRM-free music any way you can. They are begging Universal to the throw them into the briar patch if they doth protest too much (to mix literary metaphors) Universal’s selling of DRM-free music through every other channel possible. Steve Jobs & Co. know that on iTunes, there is this little menu item called “Consolidate Your Library” that will automagically suck into iTunes all of that DRM-free music you purchase via other sources.
Steve Jobs & Co. know that in a few months, Universal will let them sell DRM-free music. Even I, who am observing this from so far away I have to squint, can see it is inevitable that Universal will cave-in on this after all of their “testing” is done.
Quote of the day from Jason Fry in Real Time, his column in the Wall Street Journal:
“U.S. District Court Judge Denny Chin’s decision is remarkable for hitting the trifecta of digital-age frustrations: It fetishizes technology at the expense of common sense; points out, once again, how out of step copyright law is with our digital world; and raises the question of who, if anybody, will speak for consumers.”
Technorati Tags: copyright
Wired editor and author of the business best seller The Long Tail, Chris Anderson expresses little regret that his book (presumably an audio version) is available for free download via BitTorrent:
In his post, Chris expresses little regret that a form of his book — he figure the audio version — is available free via BitTorrent.
“My publishers want to make money, and I like them so I usually do what it takes to keep them happy, but in truth I just want to be read/listened to by the largest number of people. Leave it to me to figure out how to convert that reputational currency into cash–just get me in front of the biggest audience and I’ll do the rest. As Tim O’Reilly puts it, “Obscurity is a far greater threat to authors and creative artists than piracy.”
Okay, class. Memorize that one.
Bonus: If you didn’t read a link I made to Chris’s site last week on a similar topic,
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