Associated Press chairman Dean Singleton kicked off the week by telling newspaper executives that the AP is “mad as hell”—but at whom, exactly, still remains unclear.
“It came off pretty combative,” the AP’s Jane Seagrave told POLITICO Friday, “but that really wasn’t our intent.”
Regardless of the AP’s intent, Singleton's tough talk about those who "walk off with our work" fueled speculation that search engines (Google) or news aggregators (The Huffington Post) are now in the AP’s crosshairs. Singleton, talking of “misguided, unfounded legal theories,” even raised the possibility of litigation for those not following the rules.
Seagrave, a senior vice president for global product development, stressed that “what we’re really trying to do is work on ways to affirm the value of original reporting.”
Already, the AP has challenged bloggers and remains embroiled in a lawsuit against artist Shepard Fairey for allegedly basing his iconic "Hope" image of Barack Obama on an AP photograph.
Singleton signaled that the AP is ready to go further to prove that the world's oldest news organization won't be put out to pasture by the new media. But Seagrave stressed that while there is an enforcement aspect to the AP’s new initiative, it’s really “more affirmative than punitive.”
The AP is working on methods to attach rights information to content as well as create new models for distribution and revenue, she said.
While newspaper executives applaud, new media gurus scoff. And given the complex legalities what constitutes "fair use" of AP's content online, some media lawyers say that protecting AP's content is easier threatened than done.
Attorney Andrew P. Bridges said that “fair use is a lighting rod right now,” and acknowledged that “the notion that someone has to pay somebody else for a symbiotic relationship is in the air.”
Bridges, who works in the San Francisco-based firm Winston & Strawn, previously defended Google in a suit alleging that its search engine was illegal; his firm has represented the AP.
While newspaper veterans complain that aggregators make money off their content—paid for with costly newsgathering—it’s not the first time such cross-industry relationships have led to litigation.
A few decades back, Bridges said, copyright disputes normally took place within the same industry, whether publishing, music, or movies. But when the motion picture industry sued Sony—a non-competitor—over the video tape, Bridges contends that a new era began that continues today: Hollywood vs. Silicon Valley.
Of course, the courts decided that consumers could tape movies off television, and eventually, Hollywood benefited from the new service by selling its films to consumers on video cassettes.
Now, Bridges sees a parallel between the Betamax tape-recording case and the fight of newspaper companies against search engines and aggregators. Effectively, Bridges noted, they’re saying: “You are building a business that profits from our existence, and so you ought to pay us for it.”
“In copyright law,” said another attorney who’s represented top media companies, “fair use is one of the major fuzzy lines.”
“It’s sometimes hard to make a judgment in a clear way,” the attorney said, noting there are factors to weigh -- such as how much material is used or whether the defendant has “supplanted the value of the copyright owner's work.”
Besides the murky legal issues, the attorney questioned whether the fact that news organizations have been reaping the benefits of links and traffic for years could weaken their chances of winning in court.
After addressing the Newspaper Association of America this week, Google chief executive Eric Schmidt was asked about the AP’s aggressive posture and possible legal threats.
Schmidt, noting that Google already has a multi-million licensing deal with the AP, said he “was a little confused” by all the attention drawn to a potential AP vs. Google face-off.
“The ultimate resolution of all these will be determined by how you interpret fair use,” Schmidt said.
“And in my position I've come to learn that lawyers go to different schools. And if you went to school A you learned it one way, and if you went to school B you learned it another way,” Schmidt continued. “And if you're Google, all your lawyers went to school B, and if you're the other side, all your lawyers went to school A.”
While Schmidt said he was confused by Singleton’s speech, AP critics were incensed by what sounded like a lot of foot-stomping on the part of old media without accepting that the world’s changed.
NYU professor Adam Penenberg wrote on MarketWatch that Singleton’s “righteous indignation is misplaced,” noting that aggregators and search engines push traffic to its Web sites.
“What's the solution?” Penenberg asked. “There isn't one. We are in the midst of a paradigm shift. The big media companies with huge legacy costs pertaining to gathering, printing and distributing information either will adapt or die.”
Other critics have pointed out that the newspaper industry has had 15 years or so to incorporate the Internet into its business model.
Also, given that the AP brings in more $125 million annually from license agreements with online customers like Google—according to this month’s American Journalism Review—and builds traffic through links, critics contend that search engines and aggregators aren’t the problem.
But the AP and its supporters argue that it cannot pay for costly newsgathering without being properly compensated by those making profits off their content. That’s the argument newspaper executives are quick to make these days: The current setup simply isn’t fair.
“We need to get control of our content,” AP chief executive Tom Curley told Charlie Rose on Wednesday.
“So what you want to do in your own judgment is restore the balance of power between the publishers of content and search engines?” Rose asked.
“That’s right,” Curley responded. “We want a fair deal.”
But in talking about a fair deal, Curley downplayed media reports of future conflict between two media juggernauts, telling Rose that “everybody is trying to make it into an AP-Google [fight], and AP trying to out-Google Google.”
Also noting that Google has a license agreement, Curley said that “it’s what happens to it in the web that goes beyond that license that we need to pull back, and that’s what we’re working on.”
While Curley praised The Huffington Post, another licensee, there are clearly some fundamental differences at play.
“You hear Arianna Huffington say we don’t understand the link economy,” Seagrave said. “There really isn’t an economy around links. It’s a flawed statement.”
Huffington, while chatting with Curley and Rose, talked up the value of links and the disadvantage of media companies putting content inside a “walled garden.”
“At The Huffington Post, you know, half our traffic comes from links and search,” she told Rose. “So either we’re going to really acknowledge the brave new world we’re living in, as opposed to trying to pretend that we’re still living in the old world, where simply content reigned supreme, then we need to see how do we monetize links. And many are doing just that.”
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