Magnifisyncopathological

I'm sorry, Chaz, but I gotta go against you on this one.

Sure, the AP has property rights (although we could have a very lengthy discussion on what other lines you cross when speech becomes considered property) but in this country at least, Arrington has fair use rights as well. It's absurd to think that the AP has not just the rights to control what they say, but who else can repeat it, how much they can repeat, when and where. If so, might as well throw that first amendment out the window…

If I have freedom of speech (something you have argued on this blog is more inherent than the Constitution that supposedly grants it in this country) then I have the freedom to repeat your speech as well. The idea of copyright is an artificial (governmental!) system of limiting free speech in order not to limit innovation.

I’m not going to sit here and quote the entirety of the Copyright Act of 1976, 17 U.S.C. § 107. I would like to bring up this quote from Folsom v. Marsh, 9 F.Cas. 342 (1841) “[A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism.” I argue that Arrington has fairly cited the short passage from the AP, as his intent was to use the passages for the purposes of fair criticism.

I’m on the opposite side here. I feel that the AP is trying to abuse the current system of copyright, since the law clearly outlines that Arrington’s behavior is acceptable under fair use. The AP is trying to make the case that the maximum length of an attributable quote from the AP is 4 words. This is clearly against the provisions in 17 USC 107, the ones that limit copyright in the first place.

Chaz, you’re a blogger. What does it do to your website if the AP gets their way, and you have to ask permission (and pay fees) to quote other people’s material online? For them to restrict your free speech on this blog by attempting to take away rights granted to you by the United States Code – they’re the one’s taking the wrong stance on this.

Now, we could take this much further, as I will argue that copyright is a broken system in a digital age. Unfortunately, I will not be able to make that argument as eloquently as Rasmus Fleischer does in this CATO article I read the other day. Please give it a read. To sum, though – copyright has moved from control specifically over texts & book publishing, to works including art and music, to the current day system of attempting to limit access to tools based on potential for infringement rather than actual infringement. This cannot continue, as someone is always going to have access to the tools, even if it’s totally underground.

In short, though, US law isn’t built on property rights like you wish. So the argument that the AP should be able to exert property rights over TechCrunch and others to control access to their content is basically academic at this point.

I think you're impression of my position is incorrect, Tim. First we have to clarify what the discussion is about.

Arrington's premise is that one's rights are defined by the state. Straight from the start, his argument has a serious problem. You and I both know that what is illegal is not necessarily wrong and what is legal is not necessarily OK.

So when he asserts that the AP can't legally set the conditions it wants to the service it provides, I say bullshit. They are perfectly within their right to require their customers to promise not to use AP material in certain ways. I'm not going to bother to dig into the details of what a potential news aggregator/distributor (e.g. CNN or the New York Times) might encounter, but I very much doubt they get an unrestricted license to do whatever they want with the AP content they buy.

I can point you to three links on the AP site. On the homepage are the "terms under which this site is provided" which clearly explain that the users of the ap.org website are not granted unrestricted usage of the content stored thereon. To make it even clearer, check out the bottom of one of their news articles.

Within their Contact section, they have a Reprints and Permissions page that once again makes it clear the content they produce is not freely up for grabs.

And at the bottom of each of their hosted news articles is the following link: Click here for copyright permissions! I don't think it's difficult to see that the AP wishes to control the distribution of their content.

Think of it like I think musical copyrights could easily work in a fully free market society. If a band wants to put a label on their CD that says "if you buy this at retail, we ask that you do not attempt to make money off this or make more than one copy for personal backup use" I say great; this is a contract the seller of a good insists on maintaining and anyone who buys it realizes they are not buying total control over the CD. The band can request that the same essential restrictions be added to a contract between the owners of a music downloading service and its users in regards to the band's music. It is "initial user" copyright and can be as loose or as restrictive as the buyer and seller are willing to agree.

Complicating this is, surprise surprise, the state. Now, under threat of police violence, content-generating or wholesale distributing companies must conform to certain government standards.

To be continued tomorrow.

Well, to be continued today.

I hope the above was enough to explain I don't favor the current system. Though I do believe property rights and contracts can be legitimately claimed and defended in this context, the nearly-fascist copyright regime in place is far from a free market environment. What's important to remember about my beef with Mr. Arrington's statement is that he simply wrote off as absurd the idea that the AP could not establish rules regarding how its users utilize its service. I think it clearly can and that right has nothing to do with the Constitution, the United States Code, or the output of the court system.

Of course, there is a sphere of action outside what's strictly wrong. By establishing aggressive rules for the use of its service, the AP risks irritating and alienating its clients. I don't think their idea of "fair use" - which in my above context really means what they think can be copied with little to no regulation - makes business sense at all. It is far too easy to find alternative news sources; it is also just as easy for those sources to relax or open up their content restrictions to be more inviting to the public. Even while asserting their legitimate rights, the AP could be shooting themselves in the foot for the long-term.

It's the same as my view on a retail store's right of refusal. The owners of the Alamo Drafthouse could say they will not serve Asians, people who liked Battlefield Earth, and anyone older than 45. It's their property and it's their choice. But it would be stupid to do so from a business standpoint.

If you'll head over to the home page of this blog, you'll see the following note:

Copyrights and trademarks are held by their respective owners. Everything else was written or blockquoted from 2002-2008 by charleshueter (@gmail.com).

These words may be a manifestation of my thoughts, but you are free to use them as you wish. I do appreciate credit when it is due, such as linking to the words you use.

That's my "copyright" notice. It is about as lenient as it gets. However, it does establish the ground rules and I can count on my fingers the number of times someone hasn't respected my wish to link back to me. If I was serious about going into journalism or op/ed writing or whatever, then I might decide to strengthen that notice and put some technology measures into place to make it more difficult for casual users to copy my work.

I've had a run-in with content creators before. I commented on a News 8 Austin story and the reporter sent me a "let me give you a piece of advice" nastygram in which he complained about my lack of source attribution. I apologized and fixed the problem. He contacted me on his own and with no formal lawyerly BS, just one content creator to another. It is possible to resolve these conflicts without threatening to sue and drop a ten-man legal squad on your ass.

Fleischer's article will require a posting of its own.