It really grinds my gears when I see stuff like this: "While this could bring more licensing revenue for journalism, it may also produce a phenomenon like what is occurring in France and Germany where publishers are treating copyright like a tax to protect outdated industries — and chilling online innovation in the process."
Gee, how outdated can an industry be when you're fighting for the right to use its original content for free?[1] It's not like the AP is trying to protect the underling facts here. Meltwater could have gotten around the licensing requirement simply by paraphrasing and summarizing instead of copying snippets verbatim. But that would've required paying people and it's cheaper to just let AP do the work for free. That's almost the definition of free-riding.
More generally, people throw out the word "innovation" whenever they want to use content for free. The internet allows new distribution mechanisms. There is innovation in that, sure. But distribution mechanisms are useless without content. Creating an innovative new distribution system doesn't entitle you to get content for that system for free. Ultimately, what people value is the content, the distribution system is just a means to an end. If the creators of that content want to be compensated for it, they should be. Nothing stops you from "innovating" a new distribution system using content the creators of which are happy to license for free, other than the simple fact that there is no money in that because very few people want "indie" content.
[1] Does the government sometimes use law to prop up outdated industries? Sure. Often the demand for a kind of product dies out but the companies producing that product manage to talk the government into artificially propping up that demand. If the government used regulation to prop up the CRT industry after people had moved to LCD's, that would be an example. But when it comes to copyrighted works, that's not the case. The demand for creative content from the major record labels and movie/television studios has never been higher. People desperately want the products Sony BMG, Warner Brothers, etc, are selling. Forcing people to pay for the privilege is not "propping up" an obsolete industry.
Fair use usually allows one to quote people, especially given that they were linking people back to the originals. But the AP has always been funny about that, so you're always best off quoting another source.
Remember, the AP doesn't care how little you quote or if you link back to them. They've gone after random forum posts, too[1], so you're best off just not reading their stuff. That will make it better, right?
You have fallen victim to the classic fallacy of equating content distributors with content creators. The whole point of these innovations is often breaking up the relationship between the two.
Publishers in Germany are indeed trying to pass a new law that would enable them to sue Google for using snippets on Google News. Thats literally the whole point of the law - get some money out of Google, because they are not making any with their news websites. They have failed monetizing their content and are now trying to corner the biggest single source of traffic hitting their sites. Lament about copyright all you want, this is an industry unwilling to innovate and reform alright.
I mostly agree with you, but organizing a bunch of stories that mention certain keywords is innovative and useful. And there is a big problem with the way the current system works: Meltwater is supposed to go negotiate some deal with the AP, even when providing content to clients who are themselves licensed to access the AP content. I think you'd see much more indie content of the mash-up variety if there were an efficient way to handle the licensing.
There is nothing "outdated" or "obsolete" about content production. The issue is that technological advance has effectively stripped the business of the legal protection that it - like every other healthy business on the planet - depends on for survival.
Obviously, the unilateral extension the existing legal framework into the new technological sphere is a recipe for disaster. I'll be the first to condem the ham-fisted attempts to do so, and applaud the fully justified push back that promoters of unenlightened copyright laws have received.
But to go a step further, and declare that this business - and this business alone - is "undeserving" of any legal protection whatsoever, and that it - and it alone - "needs to figure out a business model" that doesn't enjoy legal protection from those who refuse to pay for goods taken or received, overshoots the mark. And the persistance of these arguments is exactly why we need laws in the first place: put simply, some people are self-serving assholes. They lack a sense of fairness or decency, and will follow the norms of reciprocity only under threat of force.
Most people don't get further than their freshman year in high school without discovering that these people are real, they are numerous, and they are a curse. But like any number of curses (war, plague, famine, etc.) they cannot be wished away. They have to be dealt with head on, forcefully, and with enough severity to provide a deterrent to others who may be considering similarly abusive pathways to profit.
With copyright, the question is, where do you draw the line? My own feeling is that copyright law, which evolved over centuries, was never intended to govern the conduct of private individuals. Historically, efforts by publishers to extend their control into the realm of private, personal life have been wisely checked (the Doctrine of First Sale is a shining example). And while the relentless extension of copyright terms represents unchecked abuse, it's been limited in that it still (grudgingly) respects the operative delineation between public, commercial enterprise, and private sharing and enjoyment. Indeed, these limitations have been the key to copyright's longevity as an institution. While some publishers still chafe at any limitations, the more enlightened ones recognize that these parameters are actually the key to a thriving culture, which is, in turn, their most vital natural resource.
That's why I think any efforts to prosecute private individuals under existing copyright laws are an abomination. Reform - which we desperately need - should include simple, unambiguous boundaries beyond which no publisher can reach. And the life on the other side of those boundaries should be rich and noisy and free. Of all the options I can think of, drawing the line with corporate status is the most elegant. That is to say, you can only be sued for infringement if you are a corporation.
Under this rule, the AP would have both the right and the responsibility to throw the book at a commercial clipping service. As noted, the AP has no monopoly on news gathering. If they fail to innovate themselves, or gouge those who are willing to partner with them, they leave the market to other, savvier news organizations. At the same time, they remain free to charge proces in line with their full set of costs (i.e. production and distribution), and not just the rapidly falling cost of distribution alone.
I don't think it's necessarily a problem that you can go after individuals for copyright infringement--the problem is the statutory damages. In nearly every other civil suit, the fact that you can only get actual or punitive damages filters out suits where there wasn't really substantial harm to begin with. Without the statutory damages there would be no reason to go after individuals for copyright infringement unless they were setting up a major operation in which case you should be able to go after them, individual or not.
That's a really good point. I suppose that getting rid of the (insane) statutory damages would make it economically unviable to enforce the law at the individual level, and you could secure a healthy space beyond publisher's reach in this way.
That said, I dislike the kind of law that makes everyone a criminal by default, since opens the entire population to arbitrary enforcement. The other advantage of limiting enforcement action to incorporated entities is that it sidesteps any sticky questions about individual freedom of speech.
More importantly, it provides for a commercial adolescence. There's a big gap, after all, between the work of hobbyists and professionals. And publishers have been able to exploit this to the detriment of artists and audiences alike. So I'm in favor of people being able to make commercial use of copyright protected materials without permission or payment - so long as they do so as private individuals. The assumption is that people finding limited commercial success and wanting to carry that further will find corporate entities indispensable. Whether they set up their own, or go into partnership with ones that already exist, they'll need them to grow. These are people who are ready and able to pay for the professionally produced sources they rely on. Indeed, I suspect that people with serious professional ambition will focus on handling these responsibilities in the same way that ambitious undergraduates with an eye on graduate school manage to limit social life for the sake of their studies. It becomes an expected part of going pro.
The famously exploitive agreements that artists have suffered under can usually be traced to the absence of a space in which they can freely prove their commercial viability. Creating this space would not only allow more professional artists to develop (especially ones not connected to independent wealth), it would establish a far healthier balance of power between them and the major publishers and distributers that are usually needed to develop one's appeal and audience fully.
Copyright law has not, IMO, been as fair as you seem to make it sound, especially when it comes to the music industry:
> have been wisely checked (the Doctrine of First Sale is a shining example)
Like the way that I can sell my DRM music to a second party?
> it's been limited in that it still (grudgingly) respects the operative delineation between public, commercial enterprise, and private sharing and enjoyment.
Tell that to the RIAA who sue individuals all the time.
> Of all the options I can think of, drawing the line with corporate status is the most elegant. That is to say, you can only be sued for infringement if you are a corporation.
So, individuals who pirate software, music, and movies should not be able to be sued at all? What if they distribute said pirated works?
Im sorry if I sound a bit snarky, I just feel that this is a complicated issue which you are way oversimplifying.
An "association" of (aspiring) monopolistic rent seekers is == Cartel. Ie, they are seeking to control supply side economics through limited distribution. etc.
[1] Obviously, Copyrights are legally granted monopolies.
Neither "rent seeking" nor "cartel" nor "monopolistic" means what you seem to think it means.
Rent seeking is defined as trying to profit from activity that would've happened anyway without you. Since Meltwater is excerpting articles written by AP affiliates, the AP cannot be rent seeking in this case because without them the articles in question would not exist.
"Monopolistic" usually refers to entities that have a monopoly on a particular kind of good. AP affiliates have no monopoly on news. Their copyright over their original content is a "legally granted monopoly" but in the sense that any property right is a legally granted monopoly. I'm not engaging in "monopolistic" practices because the government grants me a legal monopoly over my back yard. You're essentially punning on the word "monopoly." E.g. AMD has a monopoly on "Opteron" processors but is not a "monopoly" because it doesn't control the supply of processors.
"Cartel" is an organization of companies who control the supply of a type of good colluding to fix prices for that good. AP does not control the supply of news and hence cannot be a cartel.
It never ceases to amaze me how much of the "criticism" aimed at copyright depends on massive distortion of otherwise well-defined words.
Refusing to pay your rent to a property management company on the grounds that they're a rent-seeking cartel exercising monopolistic control over "your" apartment is not astute economic analysis. Rather, it's the mark of a (soon to be evicted) idiot. Lambasting the creator and owner of an intellectual property for running a commercial operation to recover his costs and produce a profit is the same thing.
And before anyone insists that "copies are different" and "making isn't taking", it's worth remembering that the bone of contention isn't in the copies. It's in the money that's not changing hands after the copy has been made. Economically speaking, digital media may be a special case in that units have zero marginal cost. But we don't throw up our hands and say "oh well, that's the end of professionally produced media." Instead, we recognize the inability of free markets to meet all our needs, realize that laws also play a vital role in advanced societies, and create exclusive and legally protected terms and conditions under which creators can safely exploit their work.
And while it's true that major publishers routinely display cartel-like behavior in their negotiations with artists, it's ridiculous to say that they maintain any kind of industry-wide monopoly with regard to the general public. Indeed, anyone working in these businesses can tell you how fiercely you need to compete to win public favor. It's no OPEC, that's for sure.
You're essentially punning on the word "monopoly."
Not that it makes it right, but it should be noted that Thomas Jefferson called them "monopolies" as well when discussing the Copyright Clause of the Constitution.
Right, but the sense of the two usages of the word is different (hence punning). Every property right is a monopoly. But when we talk about monopolies in the sense of cartels, there has to be some control over non-fungible supply. E.g. Every oil producing country has a monopoly over its own oil. That's the monopoly inherent in a property right. But that's not what makes them cartels. What makes them cartels is that together they control 70% of world supply, of a good for which there is no easy substitute.
But Thomas Jefferson considered copyright a monopoly unlike other property rights, since he was concerned about allowing any monopoly, yet he obviously wasn't talking about abolishing private property.
What allows for "control the supply"? You can have either physical possession amid physical scarcity (ie, saudie arabia/opec vs oil) or legal means of exclusion amid infitite propogation (ie, abstract possesion of an abstract good). Copyright is necessary but not sufficient step to make a business of the latter. You're implying AP is a failed cartel...and in this yes, you are right. But this also points out why it is being faught for. The quesion is: why is it interesting? And not just a failure...
Control of supply requires not just a monopoly over some good, but a monopoly over some good that isn't easily fungible. That's why AMD isn't a "monopoly" despite having a monopoly on Opteron processors, or why ARM vendors aren't a cartel despite ARM having a monopoly on ARM processors. Both are easily replaced with competing products. AP only has a monopoly over articles it's affiliated write--but that is a fingible good,messily replaced by news articles from say Reuters.
Agree, but your re-wording the notion of scarcity. you actually can control things that there is limited/tepid demand for. but this is confusing rent-seeking with rent-extracting. eg. in this example: it can be equally true AP is a failed rent extractor, but (is still) an active rent seeker. There is no contradiction.
You'll note that the defining characteristic of rent seeking behavior is the effort to avoid producing new and valuable work by expending resources petitioning for changes in the regulatory environment instead (e.g. diverting resources from the production of new movies to lobby for retroactive extensions of copyright protection on old movies). In other words, it has a precise, limited meaning and is not a fancy term for "just wanting to charge rent in general".
AP going to court to enforce existing laws protecting new work is pretty much the opposite of rent seeking behavior in that (a) they're spending resources to operate within the existing regulatory framework, not petitioning to alter it in their favor and (b) they're doing so in conjunction with the production of new (and presumably) economically valuable work.
Defining the product in question to encompass only AP's content is ridiculous. It's like saying AMD is rent seeking because it controls the supply of Opteron processors.
I think they need(ed) to look at this outside the context of this being a digital solution.
If Meltweather had people go through web-pages and pick out references to a client name, and then type up the relevant quotes and send the client a letter by snail mail containing references to where the client was mentioned, would this even be a discussion?
I think the "typing by hand" is irrelevant as it is just a means of copying without any or significant creative part from the copier (and even if it did involve creativity, it might still be copyright infringement. See http://en.wikipedia.org/wiki/Macmillan_Co._v._King)
Clipping services that photocopied and snail mailed articles from newspapers have existed for ages and, certainly in the EU, they pay copyright holders.
From cursory looks at EU cases, it seems to me that the primary distinction the EU makes is that of deep linking search results (permitted) vs providing a portal where users do not click through to original content (copyright infringement)
Of course, there are gray areas here, but at least, IMO the intent is what 'the people' find reasonable.
They misstated the statistic. It's that 56 percent of Google News users sometimes click through to excerpted stories (i.e., 44% of users never click through to the original), not that the average user clicks through to 56% of the stories.
When I read stuff like that, I always wonder if the reporter simply worded it wrong, or if he actually thought that what he was saying might be true, or if he simply didn't think about it and didn't care.
Meltwater searches for phrases its clients identify as being of interest. Presumably the Google comparison is based off of searches for phrases of interest, in which it's not surprising that search result clickthrough rates are 56%.
On another (mildly related) note, does anyone know much about Meltwater itself? There's something that's always seemed a bit odd to me about the company, but that's just an unsubstantiated hunch.
I had to deal with Meltwater once, and formed the view that it was a screamingly expensive news monitoring service that was easily replaced by a handful of free Google News alerts.
Sadly, management took the view that a subscription would be a set-and-forget way to tick the box on "staying abreast of the market" so I just had to suck it up and renew the sub...
As a journalism postgrad, I am extremely cool with this. AP employ thousands of stringers all round the world to gather and verify news, in dangerous and hostile places. Meltwater literally (not figuratively) took that news without giving anything back. So fuck Meltwater, and the horse they rode in on, when lovely people like Tim Hetherington give their lives to report.
This is a hugely important decision. Any blog that excerpts a bit of a news story is now guilty of copyright infringement, and it will be seen as infringement for profit (hampering a fair use defense and increasing penalties) if the blog has ads or a tip jar.
That's not the case at all. The decision rests of Meltwater's use not being transformative. They basically told there clients: "here is the article where you were mentioned, with the key excerpts." A blog that excerpts a bit of a news story but adds some analysis would be transformative and thus not infringing.
It might very well be applied to blog-spam, that simply excerpts parts of an article without adding anything. Good riddance to that.
> Any blog that excerpts a bit of a news story is now guilty of copyright infringement
It wasn't "a bit" at all, read the article. News stories are written in pyramid style, with the most important summary being in the lede, the first paragraph. That is what was being copied, as well as the title and any mention in the article that contained whatever keyword the user used for the search.
In this case the copier was also charging users directly for the content, it wasn't some indirect thing. Your summary seems both inaccurate and alarmist.
Exactly! In case of news stories, taking the headline and lede technically seems like a quoting, but in reality it is grabbing the substantial part of the original work. Moreover, when a journalist works on a story, he needs to compile much more information and interview much more sources that finally will appear in the news story, so there is much more hidden work, which the scraper don't need to do.
I personally applaud this decision, and I am also a bit surprised that EFF would support the scrappers.
I also like this quote and think the Judge is exactly right: "Judge Cote rejected the fair use claim in large part because she didn’t buy Meltwater’s claim that it’s a “search engine” that makes transformative use of the AP’s content. Instead, Cote concluded that Meltwater is more like a business rival to AP: “Instead of driving subscribers to third-party websites, Meltwater News acts as a substitute for news sites operated or licensed by AP.”
That's a hyperbolic interpretation of this, to say the least. The issue was that Meltwater was copying the essential portions of AP's works (e.g., the lede) such that there wasn't any need to ever read the original articles. That's a far cry from merely "excerpting a bit of a news story."
If you're a blog who reposts the core parts of news stories and gives no incentive for users to actually read the original story, then yes, you're probably infringing, but that was true before this ruling. If you're excerpting a small portion of a news story for the purposes of critique, context, or comment, this ruling doesn't void that fair use, either.
According to the article, the judge decided that news reporting -- what blogs do -- is not transformative but is competitive with the AP. Taking enough of an excerpt to get the gist of the story -- what reputable blogs do -- is taking "the heart" of the copyrighted work, which is now infringement according to the article.
Blogs that add their own criticism and commentary, which rewrite the story in their own words, reduce the incentive to read the original story. The blog acts as a news site and a substitute for the original story, which according to the article strengthens a claim of copyright infringement. The circumstances in which criticism and commentary would justify a fair use defense just got tightened, as did the amount of an article that is considered a sufficiently small portion to be fair use.
According to the article, the judge decided that news reporting -- what blogs do
Woah, hold up on that false premise there. reporting consists of gathering information and telling people about it by writing original content. Some blogs do this, but many just recycle incoming news and slap their own brand on top of it. And there are far more editorial blogs that basically consist of some blogger's opinion about the news than there are blogs engaged in actual newsgathering.
If you're just quoting extracts of AP stories without doing any research, you're not reporting. And if you're rewriting, you're not infringing, because facts themselves are not copyrightable.
According to the article, the judge created a new standard that it is copyright infringement for a one-sentence clipping to be on a website that is a substitute news source in the sense that people go there to read the news. Any news and opinion blog qualifies under this new standard.
This ruling changed copyright law and fair use. Adding your own original content, if it leads people to read your blog rather than click through to the AP article, enhances the claim of copyright infringement because your blog is now competing with the AP as a substitute source for news. Your original content no longer enhances your fair use defense, as it did before this ruling, but now enhances the copyright holder's claim of infringement. RTFA!
We're not talking about what Meltwater did. We're not talking about blogs that mindlessly copy and paste content. We're not talking about what used to be considered fair use before this new ruling that changed the law. We're talking about the new standard laid down by Judge Denise Cote that would make copyright infingers of every ordinary blogger who played by the rules of what the rules were last week.
That new standard is that if people might view your blog as a place to read the news, you are guilty of copyright infringement if you quote as much as a single sentence of another person's news article. RTFA!
I did read the article, and think your interpretation of what is says is quite wrong. I also read the opinion, in which discussion of the issue starts around page 28. It does not support your argument at all.
That new standard is that if people might view your blog as a place to read the news, you are guilty of copyright infringement if you quote as much as a single sentence of another person's news article.
LOL no. This is so far off the marks that I think any attempt at explaining it is going to be waste of time. If you seriously disagree, I invite you to cite to the opinion in making your argument.
For example, on the 'transformative nature of the work' test (p.32) the court had this to say:
Neither the purpose nor use of the Meltwater News Reports,nor its excerpts from the Registered Articles in the NewsReports, is transformative. Meltwater uses its computer programs to automatically capture and republish designated segments of text from news articles, without adding any commentary or insight in its News Reports. Meltwater copies AP content in order to make money directly from the undiluted use of the copyrighted material; this is the central feature of its business model and not an incidental consequence of the use to which it puts the copyrighted material. Thus, it is not surprising that Meltwater’s own marketing materials convey an intent to serve as a substitute for AP’s news service.
This directly contradicts your claim that adding your own original content enhances the claim of copyright infringement. In fact, the exact opposite is true.
Gee, how outdated can an industry be when you're fighting for the right to use its original content for free?[1] It's not like the AP is trying to protect the underling facts here. Meltwater could have gotten around the licensing requirement simply by paraphrasing and summarizing instead of copying snippets verbatim. But that would've required paying people and it's cheaper to just let AP do the work for free. That's almost the definition of free-riding.
More generally, people throw out the word "innovation" whenever they want to use content for free. The internet allows new distribution mechanisms. There is innovation in that, sure. But distribution mechanisms are useless without content. Creating an innovative new distribution system doesn't entitle you to get content for that system for free. Ultimately, what people value is the content, the distribution system is just a means to an end. If the creators of that content want to be compensated for it, they should be. Nothing stops you from "innovating" a new distribution system using content the creators of which are happy to license for free, other than the simple fact that there is no money in that because very few people want "indie" content.
[1] Does the government sometimes use law to prop up outdated industries? Sure. Often the demand for a kind of product dies out but the companies producing that product manage to talk the government into artificially propping up that demand. If the government used regulation to prop up the CRT industry after people had moved to LCD's, that would be an example. But when it comes to copyrighted works, that's not the case. The demand for creative content from the major record labels and movie/television studios has never been higher. People desperately want the products Sony BMG, Warner Brothers, etc, are selling. Forcing people to pay for the privilege is not "propping up" an obsolete industry.