Prediction: the AP will not exist in 10 years

I've blogged about the A.P.'s odd journalistic logic before (as have many others), but this is sure going to turn some heads: declaring that search results, links, quotes and the brief synopses used by news aggregation sites like Google News represent a violation of copyright law's Fair Use doctrine, the AP will hereby attempt to control links to any of its online articles. To monitor use of their content, all AP articles will soon house software they call a "wrapper" that will send data back to headquarters, and they have urged all other news organizations to do the same.

Certainly, the problems of profitizing news in the internet era are legion. As this Economist article notes, it costs a fantastic amount of money to maintain a worldwide network of editors and journalists – and that's exactly what good news requires.

My hopes lie with a microtransaction model of payment such as the one proposed by Journalism Online, where readers would pay cents per article rather than dollars per newspaper. Though it wouldn’t remove news organizations’ temptation to emphasize popularity over quality, it would at least solve one major problem: the ability to responsibly use news searches to read multiple articles on a given subject. While I’m happy to pay for news, I don’t trust any one newspaper to get it all right, all the time: better to rely on multiple streams of information that allow choice over what to read.

(I’d be particularly enthusiastic about a solution that charges based on the actual cost of production and distribution, which would share the cost across the entire readership: the more readers, the cheaper the cost to each individual. If the charge could be delayed a week or so for the number of readers to accumulate, it would create a marvelous incentive to share.)

Perhaps this move by the AP is the first towards such a model. Frankly, though, they don’t seem to be that smart.

For one thing, although they cloak their attempts to control content in legal language, they will not pursue any legal recourse against those who quote or link to their articles: “We’re not picking the legal remedy today,” says Tom Curley, AP CEO president. Why? As the above-linked NYTimes article on the subject remarks, “Executives at some news organizations have said they are reluctant to test the Internet boundaries of fair use, for fear that the courts would rule against them.”

No shit. While reproducing an entire article for profit would probably violate fair use, the AP doesn't have a prayer of arguing against internet links and short quotes in court. The relevant law comes from Title 17, Chapter 1, Section 107 of the US Code:

[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Note the emphasis on criticism, comment and news reporting. While the AP could try to make an argument based on the scale of the internet’s use of their content and its effect on their bottom line, really no court is going to rule that a headline and a link violates fair use. Yet rather than viewing the links as FREE ADVERTISING, that is precisely what the AP claims.

The campaign might make sense with enormous, successful, for-profit companies like Google: get them to share some of their still-climbing profits with the organizations that provide them with higher quality search results. But negotiations like that take place behind closed doors, not in such a public sphere. Also, Google News already has a licensing agreement with the AP.

No, they’re targeting people like, well, us here at The Train of Thought. (For the record, we make no money here.) For my part, if they don’t want me linking to their articles, then I won’t link to their articles. But lord knows why they want that.

Their stated goal is “not to have less use of the news articles, but to be paid for any use.” I agree, journalists should be paid. But the AP appears to be adopting an attitude of petulant extinction. Seriously: you want to increase traffic by taking a belligerent stance towards the non-profit blogs, aggregators and search engines that direct traffic your way? Good luck. Way to be, as they saying goes, dead right.