Associated Press Outsources Strategy to Legal Dept.


Copyright is a funny business. When taking words, music or film to market required expensive manufacturing and distribution operations, it was easy to make money by selling them. Now that everything is digital, copies fly around the world on the Internet, reproducing at will. It's harder to maintain the business—in fact, it's hard to justify a business based solely on duplicating and distributing the work of others. And it turns out that, to a copyright business, creative is a noun referring to their product, not an adjective that might apply to business strategy. If you haven't seen any blogs in the last day or two, you might think that I'm writing about the music or film distribution business, but now it's the Associated Press. In the face of a changing media environment, they've put Legal in charge of strategy.

Last time I heard about AP, they were suing Moreover over the redistribution of headlines and excerpts. Now, they're after bloggers, attempting to define away Fair Use. The new rules come down to this:

  1. Don't quote AP stories, not even a little.
  2. Don't write new headlines based on AP stories.
  3. Don't use AP headlines to link to AP articles.
  4. Unless you're willing to pay.
Never mind that companies don't make the laws, not even in 2008. Oh, wait—maybe they do.

Next, AP Sues Reader for Remembering News
The new position from the Associated Press is contrary to the public interest, not least because unlike AP v. Moreover, they started this round by asserting the primacy of commercial interest over political speech. The importance of free expression in the political sphere is sort of the point of the first amendment. Public policy aside, though, this is just a bad move by AP, reflecting a complete failure to understand the online environment:

  1. Bloggers are not entirely unaware of copyright law, including fair use (which is not defined by AP). If one blogger calls AP's C&D bluff and it goes to court, expect the defenders of the First Amendment to line up in the blogger's suppport.

  2. Facts are not subject to copyright. If a blogger writes a new headline for a news event, the blogger owns the copyright.

  3. Links are valuable on the Internet, to the extent that rational businesses pay for links in an attempt to improve their position on search engines. AP should thank bloggers for linking to them with their chosen keywords.

  4. When considering the effect of the use upon the potential market, remember that AP sells advertising on its own website. Part of the impact of excerpts and links on blogs is positive, driving more viewers to AP's ads.
You will recall that I'm not a lawyer, and it has been suggested that AP could have a case. However, if AP wins an actual lawsuit, the Internet will make a point to forget that AP ever existed, creating a tidy lose-lose scenario.

Maybe putting Legal in charge of publicity was a mistake
Legal just isn't good at dealing with bloggers. They're all about protecing the company (their job) at the expense of considering the market's reaction (not their job). But, as usual, someone with a clue about Internet culture should have been involved. It's clear that they weren't this time.

Maybe someone at AP just read an article on that word of mouth marketing thing and decided to get some. Maybe they remembered hearing something about publicity...

There is no such thing as bad publicity...
...and didn't realize that wasn't all.
...except your own obituary.
—Brendan F. Behan
As it stands, AP just gave emerging media a solid reason to prefer Reuters (NYSE:TRI)—or, even better: original sources. What's the purpose of intermediaries in the age of global distribution?

Hint: not one "AP" or "Associated Press" link above leads to the AP site. No point in linking to a company that doesn't like links.


What it looks like to me is that the Associated Press is trying to strong arm and coerce bloggers, the aggregators and online news into accepting terms that no court would ever grant them. I use the analogy of a local gang of thugs extorting protection money from terrified little business-people.

The AP is probably willing to bet that not too many people have the resources or willingness to mount a defense.

AP has some suits pending with competitors that are on shaky ground and these companies are presenting some extremely compelling motions and arguments. is one of those companies, the other is a company called All Headline News.

The motions are available from legal libraries or through the court systems online search. They make some interesting reading.

The AP clearly feels entitled to complete ownership of the news.. Not just the expression of the news, that is rightfully protected, but the facts of the news as well. That is what the "Hot News" part is all about.

What is interesting also is that the AP will be the first to claim fair use of other's content for their own purposes... It's ok if they do it, but not if anyone else dare to.

In the end this is all about money to the AP... don't forget that.

It's all about money, and the comparisons to the music and film industries are already being made.

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About Nathan Gilliatt

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  • Voracious learner and explorer. Analyst tracking technologies and markets in intelligence, analytics and social media. Advisor to buyers, sellers and investors. Writing my next book.
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