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  • First shots fired vs Internet fair use

    Posted by In-Cog-Nito on March 19th, 2005 (All posts by )

    During the CBS/Rathergate fiasco, Lex predicted a counterattack is coming from the MSM. I predicted the MSM will go after linking/fair use, a la Drudgereport.

    Today Drudge has the following headline:

    Agence France Presse Sues Over Google News

    SAN FRANCISCO (Reuters) – Agence France Presse has sued Google Inc. (GOOG), alleging the Web search leader includes AFP’s photos, news headlines and stories on its news site without permission.

    It’s a shot across the bow, methinks.

    Pretty smart move. If they sued a helpless individual, they would get the free speech/uproar factor. Sue another media company with deep pockets, and no one really cares. It becomes a technical fight by lawyers. Fight it out, and get a ruling on the side of copyright protection. Then use this ruling as a saber to rattle down the road.


    19 Responses to “First shots fired vs Internet fair use”

    1. jpe Says:

      One word for you: paranoid.

      Media companies have been filing suits like this forever. It’s just that now you’re paying attention.

    2. incognito Says:

      Better paranoid than complacent.

      Which is my point, make it a technicality fight so that no one cares. But get the ruling.

    3. Lex Says:

      Paranoia is fear of an imaginary danger. If the plaintiffs win, what then? The Wild West days of everyone linking to everything are OVER, baby. I have long thought that this current state of affairs was too good to go on. The “Wild West” period which follows the introduction of any new technology always ends, as the people with the biggest financial stake find a way to “close the commons” and get the Government to create, if necessary, and then protect, their interests by defining and enforcing property rights. This phase was bound to start eventually with the Web.

      Not paranoia at all. An accurate reading of the historical record. This time, too, there is a dimension of ideological control slipping from established hands which adds urgency to the situation.

      The MSM has not yet begun to fight back. In fact, it is only now waking up. Even a tired old dinosaur can do a lot of damage when it is fighting for its life.

    4. incognito Says:

      Thanks Lex. Smart too that they are suing another media company. Google has shareholders to answer to, so they can’t risk infringement for the sake of free speech. The key for the MSM is to set precedence. Define territories and put up fences. MSM has the content and eyeballs, so they should and will play to their strengths.

      As a side note re: paranoia, attacks don’t have to be concerted, or even planned to have effect. One MSM company sues to protect its content, another one could follow. And they don’t even have to win.

    5. Doug Says:

      I noted the same story, and also took consideration of the possible ripple effects of any ruling in favor of AFP. As I state in this post

      “While it is clear that Fair Use doesn’t apply in this specific case – it appears to fail at least 2 of the 4 common tests, especially in that it could easily be found to deprive AFP of income – a ruling that is too broad in scope could have a ripple effect on the ability to use subscription-based sources as a basis for commentary.”

      I for one am not concerned about losing Fair Use protections in the broad sense, but a ruling limiting the use of subscription-based services could have a chilling effect, especially should an increasing number of news outlets adopt a subscription model.

    6. Says:

      A Cautionary Note

      If you rely on including material from copyrighted sources in your work, and you offer that work to the public in some manner, this is…

    7. Lex Says:

      “MSM has the content and eyeballs …” And the budgets and the K Street lobbyists. When legislation is coming up, the Blogosphere will have ZERO presence.

      I don’t see a scenario which is plausible which will allow the free-wheeling approach we have seen in the last few years to continue much longer.

    8. Jonathan Says:

      The MSM biz model is failing. The Internet makes this inevitable. The old proprietary-content walls have fallen, so MSM try to enact new walls. However, attempts to do so, whether by paid-subscription requirements or litigation, are not likely to succeed. AFP may be able to stop Google from using photos or even linking, but AFP can’t easily shut down bloggers who have low costs and no fixed address and can relocate quickly to servers outside of the reach of AFP’s lawyers. (Hey, it works for sp*mmers.) So Google will stop linking or displaying AFP’s photos, and the people who would have seen the photos on Google will either not see them (most cases) or will see them on blogs. AFP will find it extremely difficult to prevent third parties from displaying any of its content, unless it refrains from displaying that content. This is a losing battle for MSM.

      (This situation isn’t closely analogous to music downloading, where you can sue a few marginal players and cow the rest. If you scrutinize traffic at a few big download sites it’s not difficult to prove that someone downloaded a file. But a blog can be hosted anywhere, and if it gets taken down it can be easily mirrored somewhere else, and anyway how do you prove that someone posted to it? It’s not as though the act of blogging transfers incriminating files to your computer from some central server, the way downloading music does.)

      And the notion that bloggers aren’t politically influential is ridiculous. Look at the growing number of issues that MSM or pols ignored or tried to hush up or distorted, that were forced to conclusions by attention from bloggers. Sure, the average blogger has no influence, but in the aggregate bloggers, particularly political bloggers, are a highly organized and influential political force, and becoming more so by the day. Look at the recent Congressional/FEC trial balloon about restricting speech by blogs, and the instantaneous negative reaction to it from bloggers. The dinosaur is wounded and lashes out, but there is little that it can do, because so much of its power derives from controlling information flow, and it can’t do that anymore.

    9. Lex Says:

      As usual, Jonathan and I are on opposite sides of this issue — not on what we want to see happen but on what we think will happen.

      I do not think the demise of the MSM is inevitable, nor do I think their business model is doomed — they may be able to fend off the threat.

      What would it take to shut down the blogosphere? Raising the cost of entry from almost zero to anything moderately positive. It would be easy to do this. Do like AFP is doing and demand permission to link. Then make people go through an annoying application process, then charge some fee to link, then make a big public case out of suing a whole bunch of hapless guys in pajamas who failed to comply. People would start to say “to Hell with it” if they were looking at expensive litigation if they linked to anything from anyone without express permission. I can’t figure out why this hasn’t happened yet.

      If anything is “inevitable” it is going to be this type of counter-attack. These businesses are going to fight to regain control and they are holding most of the cards. They are not going to simply roll over and die.

      I also disagree that the blogging world has any meaningful influence when it comes to influencing legilsation. There is no “BlogPac” but the MSM is well-established and has lobbyints who have the rolodexes. There will be bipartisan legislation ostensibly to protect against copyright violation which is really about shutting down the blogs sooner rather than later. Keep watching.

    10. Jonathan Says:

      The MSM can’t force customers to buy information that numerous other sources are distributing free. That’s the central issue from a business standpoint. MSM operations that survive will do so because they adapt their business models to this new reality.

      As for shutting down blogging, how is anyone going to do it? Maybe the threat of lawsuits could force people like Glenn Reynolds to go back to their day jobs — and even then, some of the major bloggers would put up a fight, and might succeed — but there are always going to be enough potential bloggers with nothing to lose that it will be extremely difficult to shut them all down. (And unless you shut them all down the information they distribute will be distributed.) And there are likely to continue to be places from which one can host an anonymous blog. The only way that I can see effective restrictions on blogging is if the government can restrict Internet use, and I don’t see that happening.

      Politically, I see blogs as a buffer in an almost chemical sense. They don’t have to lobby for legislation, all they have to do is expose the stuff that didn’t get exposed in the past, or that didn’t get exposed in time, and they can thereby block some of the worst excesses of our political and media cultures. Do you really think the FEC has a chance of blocking election discussions by blogs? I think it’s most unlikely. Bloggers would quickly devise workarounds, some legal and some not. Regulating blogs is like guarding fleas.

    11. Mark Says:

      Just a few notes:

      1. This isn’t the first shot accross Google’s bow. Note that Google News is still in Beta – and that there is no advertising. As soon as Google implemented their news search, it was met with MSM hand-wringing. But the MSM companies can’t do much about it until Google attempts to make money from it. This has been going on for three years, so this new lawsuit is really nothing new. See here:,1284,65106,00.html

      2. I don’t think it inevitable that MSM will collapse, just that MSM will have to eventually address blogs and take them into account. I suspect it will continue along as a sort of symbiotic relationship (with a lot of tension, granted).

      3. I don’t think the ability to freely link to news articles will be going away anytime soon, not unless something drastic happens to the technological infrastructure and protocols, which I would say isn’t as easy as it sounds. Generally, when governments get pissed off at the freedom of the internet, they propose a “new internet” which has all sorts of safeguards and whatnot, and which promptly falls flat on it’s face before it even gets to the drawing board.

    12. incognito Says:

      “I don’t think the ability to freely link to news articles will be going away anytime soon”

      That would be the worse case scenario. My rule of thumb is take the worst, take the best, and the average is where things usually end up. The more rulings the MSM gets in their favor for copyright protection, the more weapons they get in their arsenal to target Drudge, bloggers, and the “new media” sphere. Or at least that’s what I would be doing.

      I think Google wouldn’t even have to try and make money from it. I think they can argue confusion in the market place to win infringement. Brand is very important in the content world, so they can argue that control over content is their business, and be able to prove damages if someone causes confusion.

      Drudge, on the other hand, does make money by aggregating news. He would be a prime target. Take out Drudge and you make a dent.

    13. Jonathan Says:

      Drudge isn’t CNN, he’s one guy. He already left California because he didn’t want to pay state income tax. He can relocate his servers and his bank accounts to almost anywhere on short notice, and I wouldn’t be surprised if he has a backup plan to do so.

      Multiply Drudge by X thousand political bloggers and you can see what the MSM are up against if they are foolish enough to try to use litigation to defend their old biz model. They may still try but I don’t think it will do them much good, because unless they succeed in shutting down almost every blog much of the blog content that they object to will still get published.

    14. Anita Says:

      Last night CNN Singapore showed about 2 minutes worth of Condileeza Rice “chatting” with S.Korean bloggers -apparently she chatted with them for an hour. Quite a lot of time given to those without any “meaningful influence” wouldn’t you say??

    15. Lex Says:

      “…foolish enough to try to use litigation …” I don’t see what is foolish about it. I’m a litigator. Trust me, it is expensive and burdensome and often has its desired effect. If I can make an example out of somebody, I may scare off most of them. That is a business decision. Many businesses sue anyone who crosses a line, at great expense, to defend their interests, even if they know that the recovery will be trivial or nothing compared to the litigation expense — but it is worth it ot police the boundaries. Businesses do this kind of thing all the time. Also, there are other things they can do besides litigation, or to facilitate future litigation, such as expressly require permission for any republication, and saying that any unauthorized republisher will be charged $100 for each hit to his website. Unenforceable? How many months of litigation in Federal Court will it take to make that determination? Then make tactical decisions about whom to sue, to get maximum deterrant effect, for example suing a dozen or so relatively well-known blogs which are run by individuals of ordinary means. Break their backs with litigation expenses. A bunch of people, looking at this, would just get out of it. Blogging won’t go away, since you can say whatever you want, but linking to articles may go away. Which would not be fatal, but would a setback. Also, I think a bunch of strategically selected libel suits against small-time bloggers would be another way to raise the cost and to put several of them into personal bankruptcy. This could be effective, and would have the kind of “chilling effect” the MSM would like to see. As to Drudge putting his servers in Aruba or the Isle of Man, so what? If he lives here in the USA and he authorizes the publication he can be served with a complaint. And, finally and most important, you don’t have to “get them all” you just have to “set an example” and many bloggers will decide that the risk of ruinous litigation is not worth having a personal soapbox that generates not income. And this leaves out the whole issue of legislation to make things easier for the MSM. How about a law that any blog must list on it an address in the United States where it can be served with process for litigation, and the name of an individual or a United States registered corporation or other entity which is the owner of the site also indicated, subject to a $1,000 a day fine for each day it is up without an address. Merely making people disclose this information would make a lot of people drop it.

      And this is all off the seat of my pants. The ingenuity of the lawyers who work for the MSM is the best that money can buy. I have a friend who worked on shutting down Napster. He is a brilliant lawyer. There are plenty more where he came from.

      I just don’t think these guys are going to roll over and die without fighting back. If I were them, this is how I’d be thinking. And I’d be doing more than thinking, I’d be counter-attacking. I think the only reason they are not yet is they are so insulated that even now they don’t grasp the magnitude of the threat they face. But they will.

    16. incognito Says:

      You’re a good lawyer Lex. Too bad I’m not licensed yet, or I’d be peddling my services to the MSM. Come to the dark side young Nito…

    17. Jonathan Says:

      The central problem for MSM is their high cost structure. Litigation won’t help them with that. Their broadcast paradigm worked well when transmitting information was expensive, but now transmitting information costs almost nothing, and increasingly they are trying to sell products that are being given away by competitors. You can’t force customers to buy from you.

      I don’t doubt that the MSM can screw a few bloggers via litigation and maybe even legislation, but as long as there is demand for information somebody will find a way to provide it in a form and at a price that is acceptable to many consumers. (It’s not like the MSM produces such a great product that there isn’t demand for alternatives.) The public isn’t going to go back to getting its information solely from newspapers and broadcast networks.

      And Drudge can leave the country, as can other bloggers if the stakes are high enough. (For someone who makes a living at blogging, as increasing numbers of people will, physically heading for the hills might be a reasonable option in such a situation.) And how are the MSM’s lawyers going to track down people who blog anonymously through servers in uncooperative countries?

      I don’t think the media-political complex will be able to do much to suppress blogging. Survival for media companies will hinge on adapting their biz models to the new cost structure.

    18. Michael Hiteshew Says:


      It seems to me that you start from a false premise, that linking is equivalent to republication. How do you make that particular leap??

      Is citing a work in a bibliography republication? Isn’t that dead-tree style linking?

      Suppose I write an opinion piece in Atlantic Monthly attacking a book by Noam Chomsky, quoting particularly egregious passages and responding to them. Am I engaged in ‘republication’ through those selected quotes or is that ‘fair use’? How is a blog any different?

      Are the Yellow Pages guilty of infringing property rights by listing all the Ford dealerships in Silver Spring, Maryland; whether or not they’ve listed them without the express permission of those dealers? I don’t think so. Google News is providing a Yellow-Pages-like service. Looking for articles on Kyrgistan? Here’re all that were published today. They provide an information cataloging and linking service, independent of information product being linked except for categorizing it; again, similar to the Yellow Pages providing you with a list of Ford dealers, not an actual automobile. There’s a difference.

    19. Adrian Says:

      Could this be “France against Google”, rather than “MSM against Google”? See “What does France have against Google?” from Spiegel:,1518,348040,00.html