Fair Use for Fair People

Worth noting: Both independent bloggers on the web and the Associated Press are in the news this week for asking for appropriate credit for their work when it’s excerpted for fair use by online news aggregators. But the web natives frame their argument in terms of respect for the reader and defending the credibility of the information being published, assuming correctly that their businesses will grow if they honor these principles. In contrast, the AP leads with its business argument first, establishing an atmosphere of legal threats and aggrieved arguments about licensing fees with no mention of what readers want, or what respect they have for the very stories they’re ostensibly fighting to present. Hijinks ensue.

A Basic Disconnect

Andy Baio collected some reactions from Matt Haughey, Merlin Mann and Joshua Schachter on having their recent works excerpted at length, republished on the Wall Street Journal-owned AllThingsD, and arguably being misrepresented as contributors to a site they don’t actually participate in.

For indies like John Gruber, Matt Haughey, or Merlin Mann, they’re more concerned about the appearance of being affiliated with a publication without their consent. Merlin wrote, “It reflects a basic disconnect about what we’re really ‘selling’ when we self-publish. Obviously, I’m not selling paper or plastic discs or even words. I’m selling me.”

None of the writers Andy interviewed (and, by way of disclaimer/boasting about how proud I am of their success, I count all of these guys as friends) balked about being linked to, or was even quoted mentioning compensation for the ads that were run next to the excerpts of their work. Indeed, the refrain from each of these web experts was that they wanted clarity about the presentation of their work, and a completely unambiguous disclaimer about how their words ended up on those pages.

In short, each of these guys was concerned about two things:

  • Protecting their credibility and reputation
  • Making sure the information being communicated to a reader was absolutely transparent in terms of sourcing and accountability


These requests for clarity from the bloggers were made even when they might negatively impact revenues for their individual websites. Contrast this, then with the Associated Press reaction to a directly analogous situation of being excerpted and linked to by aggregator sites like Google News and, presumably, AllThingsD.

“We can no longer stand by and watch others walk off with our work under misguided legal theories,“ Singleton said at the AP annual meeting, in San Diego.

As part of the initiative, AP will develop a system to track content distributed online to determine if it is being legally used. AP President Tom Curley said the initiative would also include the development of new search pages that point users to the latest and most authoritative sources of breaking news.

The Associated Press announcement addresses pricing, licensing, and legal threats. There is no statement made about the credibility of the information being published through these online channels, nor whether the act of aggregating and disseminating news this way has an impact on its accuracy or accountability. Ken Doctor, an analyst specializing in selling online information products is one of the industry experts who has been working mightily to reframe the conversation, and his quote in this BBC article articulates this view well:

The real question is, “Is it fair for news companies to produce all this content for Google and for Google to keep the lion’s share of revenue?” What we should be focusing on is “fair share”.

I have no quibbles with Doctor’s business focus here, and Google’s responded well to that part of the conversation. But by letting people who are focused on selling the news as information products lead the conversation, newspapers are missing the most persuasive moral grounding for the case they are trying to make.


If the Associated Press made its argument on the basis of credibility and reputation, transparency and accountability, as the web-native publishers have, it would be far easier to defend their desire to share in the business model developed by the aggregators. The good news is, I’m sure there are many passionate, articulate and credible members of the Associated Press who’d be willing to present a thoughtful argument to that effect, if given the platform. And the web natives who’ve built those successful aggregators might be a lot more likely to want to work out a relationship.