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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Hah, well, I’m not trying to backpedal so much as, hmm, find the spoke in AP’s wheel? I don’t know. Some other biking metaphor.

I think part of the disconnect — and you’re absolutely right; there is one — can be explained by a legitimate crisis the AP is facing: member defections. The Columbus Dispatch, the Star Tribune in Minneapolis, the New York Daily News, and the entire Tribune Company have all given the required two-year notice of their plans to leave. Could just be a negotiating tactic on the part of those newspapers, but the AP has to find a way to keep them. So they’ve slashed rates a few times. And now, maybe, they’re essentially saying: As a perk of membership, we’re going to build this whole monitoring system and take a really hard line on copyright. Playing to the base, in other words. That was certainly the audience of that memo.

So anyway, I don’t mean to suggest we should only listen to what Kasi said and not also consider the memo and statements by Tom Curley and Dean Singleton. They’re all over the place. (And then there was that YouTube fiasco in April.) I’m just trying to throw some light on this.

To be a bit fairer to AP here, they are also just following a standard yield management principle for intellectual property enforcement: go where somebody is making some dough, so you can get a share.

An example from another business is Microsoft Office. Worldwide, millions of people pirate it, including a majority of consumers in the US. But Microsoft focuses enforcement on businesses, where the money is easy to collect, and on large scale pirates, where the impact is great. The rest of us, not so much.

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