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What AP is doing, and what ACAP and, yes, Creative Commons are trying to do, is to build a system that governs how machines, not humans, handle content. AP is aiming for news aggregators, not bloggers, and it even says so. Speaking to the Columbia Journalism Review (our thanks to Angela Gunn of Betanews for spotting this useful piece of actual journalism), AP VP Jane Seagrave said that AP has no intent to nail individual bloggers, but is aiming at sites guilty of "wholesale misappropriation" of AP content, "people who are copying and pasting or taking by RSS feeds dozens or hundreds of our stories". And as Ryan Chittum of CJR comments, "If you haven’t run across these rewrite or sometimes copy-and-paste mills that steal content, you haven’t looked very hard."

That does not, however, necessarily mean that AP is cuddly, even if you discount the scary press releases and the threatening speeches from the High Command. The combination of VAN and the news registry (if this combination is what the system turns out to be) certainly could be seen simply as a neutral tool, as something that "says this is how you can", but alongside this we have the attempt to re-establish the hot news doctrine, and the related contention that headline/link/snippet can equal misappropriation. With these AP is clearly trying to push the boundaries of its intellectual property, and in doing so it cannot help but challenge current accepted definitions of fair use.

How worried you get about that might relate to how deserving a case you think the next site AP takes a pop at is. Is, for example, Drudge Retort just a leech? AP thought so last year. Or is Daylife, a sort of aggregator's aggregator, in which Jeff Jarvis is a partner?

You can get some kind of answer to that question if you consider what might fly as a hot news doctrine case, and what might not. Back in 1918 it was all pretty clear cut - on the one hand you had AP investing large sums of money in reporting World War One, and on the other an outfit diligently rewriting the output of all AP's expensive reporting. The justice of AP's case there is entirely understandable to any journalist who has had a good scoop and then seen dozens of other outlets run off with it - they didn't lift any particular words, and as you don't own the facts there isn't a damn thing you can do about it.

But clear-cut cases are few and far between, given the nature of journalism - take the other extreme as an example. A global news agency has a stringer* in a medium-sized town in Eastern Europe. A large part of the stringer's output derives from reading the local tabloid press, looking out for the odd and eccentric, and filing it into the agency's 'funny old world' section.

Now, when somebody else lifts that story from the agency, in what sense could the hot news doctrine apply, and if it does, might it not apply to the originating tabloid (provided the tabloid didn't lift it from somewhere else), rather than the agency? Similarly, the trad Paris correspondent reads the local press, looks out for local colour stuff he can lift from Le Monde or Le Figaro, files it for tomorrow's paper then heads for the bar-brasserie.

The thing that gets ignored when the newspaper barons huff and puff about wholesale theft is that journalism is by nature heavily derivative (which is the kindest way of putting it), peppered with repetition, follow-ups and plain old-fashioned lifting. Look too hard under that particular stone and it all falls apart. Not that it isn't all falling apart already, of course.

It's really a lot more like Web 2.0 than they'd like you to think, and this limits the extent to which the hot news doctrine, or some kind of metadata description of ownership, could be legally accepted. Try making it stick for something that isn't pretty much clear-cut, and where you might not entirely be the original conduit for the facts, and the court will toss both it and your precedent.

AP, probably, is not that stupid. Where it, and the ACAP members, likely are stupid is in thinking that stopping bunches of low-rent copy'n'paste operations stealing their stuff is going to make their currently unprofitable business models profitable. Now that really is difficult to believe. ®

* A freelance journalist with a relationship with a news organisation, generally operating in an area where the organisation does not have it own correspondent, and generally paid only for submissions that are published. So basically they're based in some hick town where hardly anything ever happens. OK, Colin Barfoot? Happy? (see comments)

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