After years of watching blogs and online news sites grow and prosper, you’d hope the news industry would see the potential and not the end.  Unfortunately, all the posturing of the past few years is exploding as the Associated Press and some news leaders are basically declaring war on the internet.

I haven’t been a fan of the Associated Press, who for a news organization, has surprising distain for fair use (except when it suits AP). This week, the non-profit organization announced it will police the web for anyone pirating news content. This is not limited to copying full articles, but anyone partial copies or even sentences and headlines, targeting aggregators like Google News, Digg, and many others.  As part of a coordinated assault, News Corp. owner Rupert Murdoch put it succinctly: “Should we be allowing Google to steal all our copyrights? Thanks, but no thanks.”

But Google and aggregators are not stealing your copyrights. It’s called free publicity. Just because someone else benefits by publicizing you isn’t bad or stealing.  It’s the way the internet works.

The other ironic part of AP’s strategy is to make sure search engines post “the original source or the most authoritative source” first in it’s results. Of course, AP wants to do this by pressuring Google rather than building good SEO websites and encouraging linking to their articles (since Google ranks authority, partly, by how many incoming links you have). So aggregators and linking is bad, but special treatment from search engines, like a special section prioritizing news outlets is okay. And sounds a lot like Google News. Techmeme editor-in-chief Robert Thomson points out the Wall Street Journal and New York Times make use of aggregators themselves, linking to other outlet’s content.  The New York Times was even sued over its linking practices.

Google Chairman and CEO Eric Schmidt spoke to newspaper publishers, urging them to think about the consumers, saying “if you piss off enough of them you will not have any more.” His point is newspapers need to address the needs of consumers, not fight against the way the market is evolving. Aggregators and link sharing is how the internet works – and both make content easier to find and more valuable to the person finding it.  Newspapers spent years hiding behind pay walls and found that didn’t work (though it seems it won’t stop them from trying again).

Also part of the news industry’s problem is an attachment to the medium paper.  As Michael Masnick writes: “It’s like saying ‘how to reinvent the horse-drawn carriage’ rather than ‘how do we improve transportation’”.  Charlotte Hall, an editor from the Orlando Sentinel, says:

It stops the clock once a day and takes an assessment, offering the kind of in-depth and analytical work that the 24/7 breaking news world on the Web cannot provide. Print is good at the things the Web is not good at–watchdog, explanatory, enterprise, narrative storytelling.

But Masnick notes that nothing Hall says print is good at can’t be done on the web. Newspapers are trying to convince people that if newspapers all go out of business, there will no news. All those television networks seem to be absent in this dialogue. But this is not the case.  Newspapers can be replaced by news websites.  Websites do some things better; paper does some things better, but neither matters when consumers are more and more choosing to get their news on websites.  The customer is always right, unless, it seems, it destroys your century old business model.

I don’t think paper will completely disappear. Some people still like the tangible product, so there is a market to sell to.  But overall the market is demanding evolution, and if the current players do not want to fill the market demand, someone else will.

A popular example of the power of remix culture and transformative uses of artwork has been the popular image of President Barack Obama. The Obama “HOPE” portrait by Shepard Fairey has been become a popular symbol of the president, splashed on everything from t-shirts to books by dozens of different groups, all without Fairey demanding compensation.

Fairey based the Obama picture of an image he found on Google Image Search in November of 2008 and printed a bunch of posters. It took the internet army to find the inspiration.  The picture was traced to an Associated Press photo by Manny Garcia (with some debate, one website thinks the picture is from Reuters).

Just yesterday, the Associated Press announced it was looking into legal action against the artist.  It took three months for the news wire to even recognize the art was based on their photo and likely based their response on the conclusion of internet researchers doing their work for them.  Fairey claims his artwork is a fair use exception to the AP’s copyright. This isn’t the first time AP has abuse copyright.

The “HOPE’” portrait is an obvious transformative work, so transformative the AP didn’t recognize it until other people pointed it out. Transformative works are recognized fair use under the law.  What transformative means is up for debate, though, leaving the picture in legal limbo until the courts hash it out. The Supreme Court helped define transformative in Campbell v. Acuff-Rose Music, Inc. as:

The enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is “transformative,” altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.

The “HOPE” poster completely transformed the expression, meaning, and message of the original press conference photo. That’s fair use and hopefully the AP gets told so by the courts.

Shockingly, the AP is taking legal action after the artist has been getting tons of press and attention because of his own freedom with copyright, allowing others to repurpose this image for causes. He even went on the Colbert Report talking about how he’s embracing remix culture, letting others make money on the poster while he gets the name recognition to sell other art (he did get on Colbert, one of my dreams).  AP’s attempt to control the copyright would limit the creative potential of the photo – potential AP obviously never saw but Fairey did.  How’s that for transformative.

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The old guard of media have years of status and experience that make them seem more important. The Associated Press’ recent hoopla over links to its articles shows a disconnect from the old guard to the web world. Start-ups dream of getting some New York Times coverage because that would just set them up for success, but they ignore an article in TechCrunch or popular story on Digg might be more valuable.

Martin Varsavsky wrote for the Huffington Post about publicity his company Fon was getting. The New York Times featured him and his company on the cover of the Sunday business section followed by an article in Forbes magazine. But his website only saw 200 new uniques. A popular post on Digg netted him 50,000 uniques.

Varsavsky recognizes the benefits of print media - more resources, physical product, and established reputation. “Paper is more credible than pixels” he says. But if its traffic you need, old media won’t help you.

The Associated Press reminded me of this issue because, even as it whined about other websites sending it free publicity, the A.P. refused to link to other websites. It had no problem quoting them and saying the name of the blog, but wouldn’t include links to the quoted blog. The New York Times has recently started adding links, mostly to their blog and not their articles. Other mainstream media sites leave you the impression there’s nothing else on the web. Even new media companies like IMDB.com won’t provide links to sources, even when quoting them directly.

The issue is these links are incredibly valuable. The major tech blogs and aggregators, TechCrunch, Gigaom, Slashdot, and Digg to name a few, can bring a website down because of all the traffic they send. And once that traffic is on your site, it’s your job to keep them there. 2.3 million people read the Sunday times, but it’s a lot harder to get them to sign online and go to a website. With a link provided, you just click. Easy, no effort, effective.

Mainstream media needs to join the link culture. Linking to other sites isn’t just polite. Many sites (like Prodigeek) show links to sites linking to them. I’ve gotten reliable traffic from several blogs and that traffic inspires me to link to them more. Moreover, I don’t like to link to websites that don’t link at all (unless they’re the original source). I’d prefer to send traffic to other blogs who share in the link culture than news sites that don’t. And companies that are hostile to the link culture get blacklisted.

For companies trying to monetize their website, whether through sales, advertising, or something else, need to put their PR where the traffic is. That means publicize on the TechCrunches and Gigaoms and taste makers of your industry. The credible that comes from a Times article sounds nice, but it isn’t helping you meet traffic goals. As companies (hopefully) recognize this, blogs and websites will gain credibility as they become the next-generation of king-makers, discovering the next Googles, Microsofts, and Facebooks while the mainstream media plays catch up. Mainstream media needs to join the link culture (which includes not suing websites) or get left out and left behind.

Updated 6/24 1:37p.m. - I just read a great post by Chris Brogan on this same subject, noting how the Boston Globe wrote out the link to his blog on their website and newspaper, but didn’t link to it.

The Associated Press has been kind enough to give bloggers more a week’s worth of posts with all its antics bullying websites and charging people for quoting more than 4 words. After several instances have shown the A.P. quotes blogs (without links), the A.P. decided to quote another blog once more for old times sake. They decided to quote TechCrunch, for irony’s sake, in an article about all the brouhaha over their own anti-quoting policy.

TechCrunch’s Michael Arrington announced he sent the news wire a DMCA takedown notice and a bill for $12.50, according to the organization’s own pricing chart for quoting 22 words from his post. Arrington describe’s his actions:

Am I being ridiculous? Absolutely. But the point is to illustrate that the A.P. is taking an absurd and indefensible position, too. So I’ve called my lawyers (really) and have asked them to deliver a DMCA takedown demand to the A.P. And I will also be sending them a bill for $12.50 with that letter, which is exactly what the A.P. would have charged me if I published a 22 word quote from one of their articles.

Kudos to Arrington for standing up for bloggers and fair use.

Update 11:48 a.m. - The A.P. released a statement this morning saying the matter between it and the Drudge Retort, the original target of DMCA takedown notices, is closed.  No details about what was actually discussed.  Just move on, nothing to see here.  Let’s see how that works for them.

As part of my now ongoing series picking on the Associated Press, numerous examples of the organizations hypocrisy are coming to a broil.

The Associated Press is demanding bloggers follow guidelines on how to cite A.P. articles, requiring payment if even 5 words are copied. Michelle Malkin offers some magic math to see how much the Associated Press owes her for plagiarizing her blog posts.

Malkin finds A.P. articles from April and May quoting her posts, without providing links back. Malkin also reports the A.P. quoted the blog Patterico on Monday, the same day they were outlining their pay-for-fair-use program.

And both times the A.P. didn’t provide links back (print mentality), unlike us generous bloggers. Both Malkin and Patterico are kind enough to link to the A.P. articles plagiarizing them. I’ll stick with linking to just the blogs.

One theory about the A.P.’s attack on bloggers is it’s posturing against its own customers; newspapers who might realize they don’t need the A.P. anymore. The A.P. was formed to help local papers share reporting resources to cover major, national stories, but on the internet, the A.P. has become competition to these same papers. Suddenly, one user can see the same A.P. story on a dozen websites. Dorian Benkoil writes:

[Cleveland Plain Dealer Editor Susan Goldberg] said she was no longer reliant on The Associated Press for her stories from the region but instead was getting the original versions direct from the other sources around the state rather than paying “a big chunk” of her budget, about $1 million for rewritten AP stories. Picking up directly, on the Web, and putting other papers’ stories directly in the newspaper was also better quality, she said, and readers were noticing:

“I mean, we’ve always had access to news from all over the state. It was just, you know, it went through the AP mill. I frankly think we’re getting better, more distinctively written stories because they’re not going through the AP mill.”

Steve Boriss writes how the A.P.’s stance against linking is a sideways attack to prevent newspapers from just summarizing and linking to A.P. stories instead of paying for them.

Newspaper trying to cut its costs could theoretically drop its AP membership, keep its exclusive content to itself, and start each big story “According to the AP,” lifting as many words as possible then paraphrasing the rest. By cracking down now to limit the number of lifted words, the AP is making the price for defecting members higher.

Basically, the Associated Press, a non-profit organization formed to benefit the United States’ newspapers, is worried about its solvency and longevity (as it should be) and doesn’t want to evolve - it wants to maintain its cushy position of power. Unfortunately, this short term thinking is going to backfire as newspapers and other wire services, like Reuters, pioneer new web-friendly business models leaving the A.P. where it is - obsolete.

The Associated Press has released guidelines it expects bloggers and websites to follow when using its content. As I wrote about yesterday, the A.P. sent seven DMCA takedown notices to the Drudge Retort for user-generated headlines and less than 100 word quotes linking to A.P. stories. The A.P. has been helpful enough to offer a tiered system so anybody can license its content, ignoring for the moment the concept of fair use.

• 5-25 words: $12.50
• 26-50 words: $17.50
• 51-100 words: $25.00
• 101-250 words: $50.00
• 251 words and up: $100.00

Non-profits get lower pricing. How generous.

I’m not sure if each number count as a word, so I might owe the A.P. $12.50. Thankfully fair use still exists, no matter how much the A.P. likes to pretend otherwise (and benefit from for all for its articles).

The A.P. provides a helpful form for people to throw money at the not-for-profit organization (A.P. is non-profit, shocking, I know). You must paste the excerpt you wish to plagiarize, no more than 2,000 characters, and provide the URL. The A.P. wants to make sure its content is used wholesomely, so it “reserves the right to terminate this Agreement at any time if Publisher or its agents finds Your use of the licensed Content to be offensive and/or damaging to Publisher’s reputation.”

If the A.P. doesn’t like what you wrote, it can just cancel the agreement. I wonder if they give you your money back?

Last week, the Associated Press sent DMCA takedown notices to the Drudge Retort, a user-submitted news aggregator. Drudge Retort featured seven A.P. articles with headlines (often user-generated, not original), less than 100 word quotes, and a link to the original article which, according to the A.P.’s letter, did not fall under fair use.

The use is not fair use simply because the work copied happened to be a news article and that the use is of the headline and the first few sentences only. This is a misunderstanding of the doctrine of “fair use.” AP considers taking the headline and lede of a story without a proper license to be an infringement of its copyrights, and additionally constitutes “hot news” misappropriation.

The blogosphere spent the weekend lambasting the A.P. for overstepping the bounds of copyrights. The A.P.’s VP and Director of Strategy Jim Kennedy answered with a copy and paste job on dozens of blogs (I wonder who owns those comments):

We get concerned, however, when we feel the use is more reproduction than reference, or when others are encouraged to cut and paste. That’s not good for original content creators; nor is it consistent with the link-based culture of the Internet that bloggers have cultivated so well.

To further remedy the backlash, the A.P. announced today a set of guidelines for bloggers in linking to A.P. articles.

The Associated Press has been reliably archaic in evolving to the internet age. The A.P. pressured Google over its News search engine, eventually convincing Google to pay the A.P. for its stories and pictures. Google had no obligation to pay the A.P. and likely led to other newspapers suing Google for their share and encouraging the A.P. to think it can completely control its content.

Today’s New York Times quoted Kennedy recognizing their initial approach to blogs might have been “heavy-handed.” A.P. executives met to revise their strategy which will likely appear in their usage guidelines. Bloggers, just like mainstream news sources (including the A.P.), won’t accept guidelines on how to use content. The A.P. does not get to set special rules on its content, same as the MLB and ABC and any other organization. The point of fair use is that it doesn’t require permission from the copyright holder. The more companies accept these restrictions, the more other organizations will try to expand the power of their copyrights.

A.P.’s recent moves will inspire bloggers to avoid A.P. stories, instead leading traffic to competitors who want free promotion. The result will be a less influential A.P. as other news services embrace internet technology instead of fight it.