The AP’s be-evil policy

By Felix Salmon
August 14, 2009
Zach Seward got himself a great scoop when he procured a confidential AP memo which takes a very aggressive stance about protecting the company's intellectual property. Here's how the memo begins:

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Zach Seward got himself a great scoop when he procured a confidential AP memo which takes a very aggressive stance about protecting the company’s intellectual property. Here’s how the memo begins:

The evidence is everywhere: original news content is being scraped, syndicated and monetized without fair compensation to those who produce, report and verify it. AP’s legal division continues to document rampant unauthorized use of AP content on literally tens of thousands of Web sites. The problem is quickly spreading to mobile, where new applications are cropping up daily that do little more than repackage the efforts of AP and others, siphoning off consumers and revenue from those whose content is being exploited.

It continues by talking about “the urgent need to regain control”, adding that “it is difficult to overstate the importance of taking action at this moment… AP has both business and legal imperatives to assert its intellectual rights”.

This is all pretty unambiguous stuff. But Seward seems to be backpedalling desperately from the obvious conclusions, after one conversation with the AP’s general counsel, Srinandan Kasi.

Kasi said that the AP thought Andy Baio’s Associated Repress site was “wonderful”. He said that a hypothetical blogger copy-and-pasting an entire news article would probably be “perfectly fine”. He even, pace those “new applications cropping up daily” in the mobile space, said this:

A mobile developer who wanted to include the AP’s articles or videos in an iPhone application could do so, probably without paying for access. Addressing the hypothetical developer, he said, “If this becomes a runaway success, I want to be part of this kind of business arrangement with you. In the meantime, if you want to experiment, go at it.”

The impression that Kasi gives, via Seward, is that the AP is benign at heart:

When you look at the things that we’ve actually enforced or pursued, it’s a small handful of situations. Even the ones where there’s a lot of noise being made, it is to point out the kind of conduct, of systematic conduct that we want to have addressed. But if you really push it to the extreme of, ‘OK, how many do we legally enforce in a court of law?’ It’ll be less than the number of fingers on a single hand.

This is really hard to square with the black letter of the memo, with its talk of the “legal imperatives” facing the AP. And in fact, if you examine it closely, it’s much more invidious than it sounds.

Essentially, the AP is encouraging the rest of us to remix its work — on the understanding that, statistically speaking, most of us will fail. On the other hand, if we succeed — if we go viral, like Shepard Fairey, or start making non-trivial ad revenue, like Newser, then they’ll come at us with expensive lawyers, and they won’t be friendly. What’s more, they feel that it’s strategically necessary to be very aggressive in protecting their intellectual property in such situations.

This isn’t a FUD campaign designed to make people wary of using AP content. It’s worse than that: it’s an attempt by the AP to outsource innovation to others, and then, in the handful of cases where the innovative gamble pays off, grasp substantially all the benefits of that innovation for themselves. Call it a “be evil” strategy. How else can you explain the Fairey lawsuit?

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