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Licensing the public discourse

Associated Press logoThe Associated Press unleashed a firestorm in the blogosphere last week when it claimed that Drudge Retort, a left-wing alternative to the conservative blog Drudge Report, had committed copyright infringement by linking to and briefly quoting several AP articles. Bloggers everywhere were surprised to learn that the AP expects bloggers to pay for the privilege of brief quotations from its articles. Want to quote 5 words from an AP article? The AP wants you to pay $12.50. Want to post and comment on a 60-word statement by a presidential candidate from an AP story? That’ll be $25.

Even worse, the AP requires anyone paying this licensing fee to agree to detailed terms of use, which, among other things, prohibit use of quotations from AP articles that are derogatory to the AP or the journalist who wrote the article. In other words, you’re allowed to quote an AP article to say you liked it, but not to say it was terrible. And if the AP isn’t happy with how you’re using the quotation, it reserves the right to terminate the license at any time.

Copyright law, however, is designed to encourage creativity and free expression, not to impose a stranglehold on public discussion of the news. Sure, the AP has a copyright in its articles and can prohibit blogs from reposting those articles. But the AP has no right to impose a tax on brief quotations from AP news stories for the purpose of referencing, discussing, or criticizing those stories and their authors. The right to quote a reasonable amount from a news story for purposes of commentary or criticism is guaranteed by the right of fair use in the Copyright Act, and by the First Amendment.

Under pressure of a threatened boycott by outraged bloggers, the AP appeared to back off its position on Saturday, saying it would “rethink” its policy toward bloggers and set guidelines for how much bloggers could quote without infringing the company’s copyright. But the AP again appears to be assuming that it has the right to decide how much of its stories bloggers can use. The right of fair use, when it applies, applies even without the permission of the copyright owner.

The AP’s articles belong to the AP. The public discussion of those articles, and the news included in them, belongs to the public.