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Licensing the public discourse

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The Associated Press unleashed a firestorm in the blogosphere last week when it claimed that Drudge Retort, a left-wing alternative to the conservative blog Drudge Report, had committed copyright infringement by linking to and briefly quoting several AP articles. Bloggers everywhere were surprised to learn that the AP expects bloggers to pay for the privilege of brief quotations from its articles. Want to quote 5 words from an AP article? The AP wants you to pay $12.50. Want to post and comment on a 60-word statement by a presidential candidate from an AP story? That’ll be $25.

Even worse, the AP requires anyone paying this licensing fee to agree to detailed terms of use, which, among other things, prohibit use of quotations from AP articles that are derogatory to the AP or the journalist who wrote the article. In other words, you’re allowed to quote an AP article to say you liked it, but not to say it was terrible. And if the AP isn’t happy with how you’re using the quotation, it reserves the right to terminate the license at any time.

Copyright law, however, is designed to encourage creativity and free expression, not to impose a stranglehold on public discussion of the news. Sure, the AP has a copyright in its articles and can prohibit blogs from reposting those articles. But the AP has no right to impose a tax on brief quotations from AP news stories for the purpose of referencing, discussing, or criticizing those stories and their authors. The right to quote a reasonable amount from a news story for purposes of commentary or criticism is guaranteed by the right of fair use in the Copyright Act, and by the First Amendment.

Under pressure of a threatened boycott by outraged bloggers, the AP appeared to back off its position on Saturday, saying it would “rethink” its policy toward bloggers and set guidelines for how much bloggers could quote without infringing the company’s copyright. But the AP again appears to be assuming that it has the right to decide how much of its stories bloggers can use. The right of fair use, when it applies, applies even without the permission of the copyright owner.

The AP’s articles belong to the AP. The public discussion of those articles, and the news included in them, belongs to the public.

Cross-posted from Citizen Vox

Kentucky agrees not to discriminate against blogs

In a victory for the free speech rights of bloggers, Kentucky has settled a lawsuit with political blogger Mark Nickolas, whose critical comments of then-Governor Ernie Fletcher resulted in the state “blacklisting” all blogs on state-owned computers. Under the settlement, Kentucky officials agreed to no longer single out blogs for special treatment.

Public Citizen filed suit against Fletcher on Nickolas’s behalf, arguing that arbitrarily discriminating between blogs and mainstream media sites was arbitrary and violated the First Amendment. Public Citizen also presented evidence that the filtering policy was implemented because the governor’s office was unhappy with Nickolas’s blog, which was widely read by state employees. The ban went into effect the same day Nickolas was quoted in The New York Times criticizing Fletcher.

Kentucky reserved the right to regulate its computer systems to prevent employees from accessing inappropriate sites, but agreed not to discriminate against websites just because they are blogs.

Public Citizen’s filings in the case are available here.

Cross-posted from Citizen Vox

Supreme Court patent decision should give some comfort to consumers

The Supreme Court yesterday issued an important decision involving patents that, although technical in nature, may end up becoming an important victory for consumers. In recent years, companies have increasingly attempted to use their patents on products to limit what people can do with those products after buying them. For example, companies attach "not for resale" labels on products, a practice that allows them to keep prices high by limiting competition from low-priced used goods. The same practice is used by copyright owners to limit the resale of software and music. In Vernor v. Autodesk, Public Citizen recently won an important victory against a software company that attempted to impose just such a limitation on the resale of software. In another case, the Electronic Frontier Foundation is challenging the recording industry's attempt to prohibit resale of promotional CDs by labeling them "promotional use only."

The Supreme Court's decision yesterday in Quanta v. LG Electronics should give some reassurance to consumers who purchase products that come with limited terms of use. The case involved the doctrine of "patent exhaustion," a legal rule providing that patent owners, once they have sold a patented product, have no further right to control what the purchaser does with it. LG had licensed its patented computer chip technology to Intel. The license agreement granted Intel the right to use the chips in its own products, but also provided that anyone who subsequently purchased the chips from Intel did not have the same right. When, in spite of the agreement, Intel sold the chips to Quanta, LG sued, arguing that Quanta had no license to use the patented technology.

The Supreme Court disagreed, holding that once LG had sold the chips to Intel, it had exhausted its rights in the chips and could no longer control what Intel did with them. Although the Court's decision did not rule out the possibility that different sorts of license agreements might be upheld in other cases, the outcome is a step in the right direction. The decision reinforces the principle that patent owners cannot use their rights to interfere with competition and limit what people can do with the things they own.

Cross-posted from Consumer Law & Policy Blog