AFP case perils all online publishers
Though some knee-jerk commentators called the suit "frivolous," it is anything but. It could change dramatically the economics of online publishing and stop the lively open-source publishing movement in its tracks.
AFP has accused Google of violating its copyright by reproducing headlines, stories and photos in Google News. Charging that its copyright has been violated, AFP not only is demanding $17.5 million in damages but also removal of its content from Google News.
Underscoring the seriousness of this case, Google is dropping all AFP content from its News.
Those of us who wish AFP weren't so persnickety would like to argue that the "fair use" provision of the copyright law permits someone to publish quotes or extracts of copyrighted material for purposes of reporting or commenting on the news. But "fair use" is not a hard, fast or easily definable standard.
"The only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court," according to the superb briefing on the subject by Nolo Press on the website published by the Stanford University Libraries. "Fair use" is judged by four factors:
1. Was the original material copied verbatim or was it used to create something new? If the copyrighted material was used to create something new, it is considered "transformative," which is protected as fair use. It would be transformative to quote a passage from an article and then comment on it, even if you said unflattering things. It would not be transformative to simply cut a story from website A and paste into website B. If Google copies an AFP photo into Google News, what has been the transformative use?
2. What is the nature of the copyrighted work? You have a stronger case for fair use when the copied material is factual, as opposed to fiction. Google seems safe here, but passing only one of the four tests won't likely carry the day.
3. How much copyrighted material is used? The less copyrighted matter the user takes, the safer he will be; provided, however that he does not take what is judged to be the "heart" of the work. When Google reuses "only" the AFP headline and lead paragraph, is it taking the "heart" of the copyrighted material? If it reproduces a thumbnail of a picture, is it still publishing the "heart" of the image?
4. Does the use deprive the copyright-holder or income? If Google uses AFP's headlines or pictures to draw traffic to its site, where it sells ads, then it could be argued that Google is benefiting economically from the use of the copyrighted content. In fact, Google does not run ads on Google News. But it does run ads elsewhere on its interconnected sites. To the degree Google News helps build traffic elsewhere on the site, should AFP be compensated?
Even if online publishers assiduously endeavor to abide by the fair-use standards, the ambiguities of the law and the expanding capabilities of technology put them at continuous risk of being sued by a zealous owner of copyrighted content. (Once the first complaint is drafted, a lawyer can mail-merge a copy to a limitless number of defendants.)
If AFP and the other producers of copyrighted content push the issue, all online publishers either will be forced to pay copyright fees or run the risk of being sued into oblivion. The precendent for wholesale copyright licensing was established long ago by music producers and broadcasters. BMI conveniently has a licensing service in place for webcasters.
Reuters and the Associated Press, the two primary English-language news services, have begun adding prominent copyright warnings to the material they publish on the web. Remember, the AP is a co-operative venture owned by the very same traditional media companies whose interests are gravely threatened by the rise of Google, Yahoo, Microsoft and the other online media behemoths.
It is only reasonable to wonder when the AP, New York Times, ABC News, USA Today, CNN, Business Week, Chicago Tribune and countless others will file suit to demand payment for -- or block the use of -- their content on other web sites.
Frivolous? I don't think so.