Blogging Insurance & Quoting the Associated Press

Could social news aggregators such as Digg, Techmeme & Technorati be sued for copyright infringement because the frequently used lead for a story often encompasses the core story?
Larger concerns will no doubt have their own team of lawyers, but do bloggers need Blogging Insurance?

The idea of specific insurance policies for bloggers, as a form of liability insurance to cover defamation cases has been around for some time.

It seems even Jason Calacanis at one time was thinking of entering the market

Domain Name: BLOGGINGINSURANCE.COM
Registrar: AOL, LLC
Whois Server: whois.registrar.aol.com
Referral URL: http://www.registrar.aol.com
Name Server: NS1.WEBLOGSINC.COM
Name Server: NS3.WEBLOGSINC.COM
Status: clientDeleteProhibited
Status: clientTransferProhibited
Status: clientUpdateProhibited
Updated Date: 26-mar-2007
Creation Date: 01-aug-2004
Expiration Date: 01-aug-2008

Whilst Michael Arrington has been throwing a little scorn on the Media Bloggers Association it does seem to have some long standing (3 years) roots and some pedigree.

In an announcement today covering some of the back story of the legal complaint the Associated Press raised with the Drudge Retort, there were some interesting things revealed.

Story Leads

That vital opening paragraph in any article or news item.

  • Encourages continued reading when above the fold
  • Might be used as a custom excerpt on landing pages (before the jump) to encourage clicks
  • Appears in excerpts on socail media aggregators such as Techmeme and Technorati
  • If used in a meta description, part of it might appear in search engine results
  • It makes an obvious choice for use with social media submissions

Apparently the Associated Press look on their Headline + Story lead as being a core part of their news articles, and reproducing them either exactly or paraphrased might make you liable of copyright infringement.
Creating a news summary based on their coverage containing all the facts might also land you in hot water.

The alternative point of view is very clearly portrayed by Mike Butcher of Techcrunch UK also reported on the main Techcrunch site

Scott Rosenberg puts it differently

The trouble is that fair use law does not, apparently by intention, draw a simple line. It sets up a bunch of criteria that you have to weigh. And so the nightmare reposted-feed site is almost certainly not a fair use. A Digg home page with lots of AP stories? Well, on the one hand Digg is a business that conceivably is taking business value from AP; on the other hand, Digg users rate and discuss stories, so they’re adding them. And AP accounts for only a little bit of Digg’s total volume of stories.

Note: I would have already proposed an “Associated Press Nofollow Plugin” but that is near on impossible – their news stories are syndicated to other sites, and it could be one of 1000s of sites where you first see a story and might give a link. Should bloggers nofollow all newspaper sites? They never or very rarely link to us.

Blogging Insurance

Also included in the article by Robert Cox is the introduction of blogging insurance for members of the Media Bloggers Association.

Cost breakdown

  • $25 to join the Media Bloggers Association
  • 45 minutes to complete an online course
  • $540 for “media Pro” insurance for bloggers earning less than $10,000 per year.

Hang on a second, that isn’t workable

It is impossible to determine earnings from a blog:-

  • Direct Advertising
  • Affiliate programs
  • Membership programs with attached blog or vice versa
  • Donations
  • Consulting
  • Branding and speaking gigs
  • Links to other web properties not related to blogging

Robert Scoble, Seth Godin, Jason Calacanis, Matt Mullenweg, Jeff Jarvis and many other top tier bloggers most certainly gain more financial benefit from their personal blogs than I do, yet don’t overtly monetize. Fred at A VC has advertising, and the money is donated to charity.

It was mentioned being “impossible” coming up with $2,000,000 to fund a dedicated service, yet so many VCs benefit from the honest feedback from the blogosphere, and their investments gain so much free coverage, $2,000,000 is just a drop in the ocean, and it would be a viable business, even if it needed to be subsidized a little.

Maybe look on it from the reverse angle – startups looking for coverage by bloggers should contribute to a blogger immunity fund that waives prosecution of bloggers writing about them. That fund could be used to help protect bloggers on all topics, or at least seed such a fund.

If bloggers have strong legal protection from such an organization, big business trying to use SLAPP tactics would be heavily reduced.

Without adequate protection, the whole blogosphere effectively become shills, because they can’t write negative (though constructive) reviews of services for fear of legal action, and even comments on blogs become a legal liability.

Paid review blogging services should also be contributors or offer their own protection

Vlad Is Still Being Sued By ePerks

This isn’t my first mention of Vlad’s ePerks defamation case, I certainly don’t intend to stop.

He has actually updated that post with details of his legal representation -Karl Kronenberger of Kronenberger Burgoyne Internet Law Firm

It is interesting that the EFF have made statements regarding the AP vs Drudge Retort case – surely Vlad’s case deserves some airtime too.

Greg at the Bloodhound Real Estate Blog has been updating on contributions to the legal fund so far – on 16th June is was less than $2000

Thanks to all the contributors, and I am not sure where they have come from as I have personally seen over 30 blog posts.

However my opinion so far – that is pathetic

I encourage people to grab a donation button, and don’t forget to donate (the fund is being run / controlled by Greg Swann at the Bloodhound blog)


Support Vlad Zablotskyy’s Defense Fund
Defend your own right to free speech!

I know Vlad is grateful for every contribution – I received a personal thank you email from Vlad showing his appreciation after my donation

It is great to think that all bloggers should already have some kind of business liability insurance, but if you are barely covering hosting costs, or your earnings from blogging are not much more than national minimum wages, the thought of having to hire a lawyer on retainer just doesn’t enter into it.

Your chances of being sued are just as likely on a small blog as one with 100K+ subscribers

Liked this post? Follow this blog to get more. Follow

Comments

  1. says

    Pathetic or not, your involvement has been a vital goad in the results we’ve had so far. Thank you for the spotlight you’ve brought to bear on Vlad’s persecution.

  2. says

    Creating a news summary based on their coverage containing all the facts might also land you in hot water.

    Andy, I don’t agree with this one. Facts cannot be copyrighted. If the AP (or anyone else) reports that a person was arrested – and that is printed elsewhere, that is not content theft.

    The problem arises when someone reprints word-for-word an AP graf or uses exclusive quotes (not made during a press conference or in a public announcement) and doesn’t credit the source.

    As for blogger “insurance,” it only the first step in silencing non-corporate backed writers.

    • says

      Ed I would love to agree with you, but the Supreme court on a number of occasions has ruled differently.

      http://www.nolo.com/article.cfm/pg/3/objectId/C3E49F67-1AA3-4293-9312FE5C119B5806/catId/B2BF24DF-082A-4813-A840F5080C3EAB71/310/276/240/ART/

      In one famous case, The Nation magazine obtained a copy of Gerald Ford’s memoirs before their publication. In the magazine’s article about the memoirs, only 300 words from Ford’s 200,000-word manuscript were quoted verbatim. The Supreme Court ruled that this was not a fair use because the material quoted (dealing with the Nixon pardon) was the “heart of the book … the most interesting and moving parts of the entire manuscript,” and that pre-publication disclosure of this material would cut into value or sales of the book.

      • says

        Andy, This is where we get into some gray areas. One can argue that pre-publication of artistic material could damage a publisher, hence fall outside fair use.

        However, it is still fair use to comment on public affairs. The Nation could not be sued if they simply reported that Ford was preparing a book that provides details of his role in the Nixon pardon.

        Likewise, a publication cannot be sued for reporting commonly-known facts, no matter who else reports the same set of facts.

  3. says

    Hope they don’t come up with Kelly’s Blog Book as well for pricing the blog :) We have something similar already like myblogvalue.com – wonder if they insure blogs for that kind of money? (John Chow dot com is priced above 2mln according to myblogvalue…

    Ajith Edassery

  4. says

    I would love to talk to a copyright attorney and get his/her opinion on this. For real. I am thinking about researching this.

  5. says

    $540 for bloggers making less than $10,000 a year? This seems like a steep price tag that many won’t be able to afford/won’t budget for. It is a very interesting idea nonetheless.

  6. says

    Titles are not protected by copyright under the Copyright Act. Is a headline a title? Probably– that would explain why AP says Headline + Story lead = copyrighted material.

    http://www.copyright.gov/circs/circ1.html#wwp

    Google has had a few of these cases, most recently Agencie France-Presse v Google (headline + lead + photos) displayed in Google News). The case settled last year w/Google agreeing to pay a licensing fee. Google had just lost Copiepresse, a Belgian case.
    AP was following that case and was surely bolstered by the settlement. Google has since cut a deal with AP

    Preliminary motions in the AFP case indicated the Court’s leaning to allow news headline in Google News, especially factual ones. (facts are not copyrightable)
    “AFP does not cite a single case holding that such short and intensely factual statements are protectable, nor does Google know of any.”
    http://tinyurl.com/5b2mzz

    An alternate legal theory is misappropriation, which has used to protect “hot news”.

    The law is a gray ocean.

    After the Vlad case, I bought domains blogginginsurance.com & bloggersinsurance.com Will sell each one to highest bidder above $1000 and donate to Vlad. contact sellsius[at]gmail.com

  7. says

    Andy your articles are always quite curious, insurance for blogging, it never occurred to me. However, I recently herd you could be sued for using fonts without paying for them. So ignorance is no justification under the law I guess. Even if you are not aware of the law you can still be held accountable. In the case with social media aggregation of news stories such as Digg, I would have to say they clearly add value and make the content unique as user comments and input and ranking, this gives the information displayed on Digg, for example, another significance. If Digg or drudge report can be sued why not Google, Google news etc.

    • says

      As Joe kindly pointed out already, Google doesn’t get sued as long as they pay the bills.

      If it is something Google can’t get away with, there is a good possibility that other sites aren’t immune either.

  8. says

    What a gray area..even if it is “against the law” to use facts or quotes from other news stories – how will it truly be monitored all over the web? C’mon – it’s nearly impossible!

  9. says

    Thanks for bringing the attention back to these 2 ridiculous cases again. Both are equally disgusting and appalling. eJerks and Disassociated Press vs bloggers – bloggers have to win.

  10. says

    I have been following Vlad’s situation through a variety of posts on various blogs, and had also been following the one that’s older and out of Miami. It is scary that freedom of speech applies in some instances and not in others, and you don’t know ahead of time where it’s really okay.

    I wonder just what Blog Marketing Journal wrote – how on earth to police the whole internet? I can’t imagine how that can be done, but I surely don’t want to be one of those that they did police and decide to go after.

  11. says

    The Associated Press conflict is not a ‘freedom of speech’ issue because it’s not a government entity cracking down on someone’s ability to use their content. So that’s not a good argument.

    The stronger argument against AP’s stupidity is that they’re writing facts, and they can’t prevent people from re-using those facts. They CAN get angry if folks don’t provide attribution, but that’s it.

    This is just one more death spasm of the old clueless publishing elite.

  12. says

    People will sue whenever they think they have something to gain or think it will satisfy a “need” for revenge. As the ejerks silliness proves – it does not even have to be likely to win in order to hurt the target.

  13. says

    Just a quick note on AP. Often newspapers use the headline and the first paragraph in a column of shorts, while other newspapers will run the full story. So what most often gets displayed at sites like Digg is often all that many newspapers print. They actually have a case in saying that the this is the core of their story.

    Where they fall down with sites like Digg is that A) the user creates the content, not the social bookmarking site, and B) the user takes the headline and first paragraph from the version of the story that AP publishes online. As long as that is less than 10% of the story, there should theoretically not be any infringements (notwithstanding the Ford case mentioned above, which has some special circumstances). Where some social bookmarking sites might be vulnerable is where they autofill the online title, which makes the site share responsibility with the user for the use of AP’s title.

    Where does that leave a blogger? Create your own headline.

  14. says

    Quite an interesting article. I could not believe what I just read. However, as one of the commenters pointed out, the price tag is too steep for the smaller folks. Then again, once the insurance process gets going, that will pave the way for re-insurers to get in on the band wagon too! I didn’t realize that bloggers were considered that wealthy!

  15. says

    This post has certainly got me to thinking.

    Who would have thought to consider blogging insurance and the need for it.

    However, the cost for joining the Media Associations seems a bit high, considering the average small to nonexistent income of most bloggers.

  16. says

    I wonder if we would be talking about this issue 15 years ago? Now that the Internet has grown to where it is today (and surely will continue to grow rapidly) we are finding issues of speech and copyright infringement arise.
    I definitely feel that “stealing” content is not correct- but the laws for the Internet cannot be the same as the laws for America.

    • says

      Yes, I agree with you. There has to be some logical way to deal with this that is not the “letter of the law”.

  17. says

    Andy,

    I’m glad I’ve come across this article you’ve written as it clarifies some points I came across in a forum discussion. It’s truly scary to think about how “grey” the line really is when it comes to copyright issues on the ‘net. Someone somewhere in authority needs to come out with some clear(er) guidelines that all bloggers can follow.

    Thanks for your helpful work!

  18. says

    No, bloggers don’t need insurance. AP doesn’t have a right to claim all news, what happen to the 1st amendment. I see this going to the supreme court with the bloggers winning. I’m sure there is a lawyer now working on getting it into court.

  19. says

    What is happening with Vlad is reprehensible and down right scary…especially for the little guys!

    I, too, was impressed by the personal thank you from Vlad for my donation. He is a true gentleman!

  20. says

    Could I be sued for using a news site’s images in blog posts? I occasionally use images from a news site to brighten up long wordy blog posts, and always credit the site when I do so. Would Bloggers Insurance cover this?

    I agree with Reginald – The cost of the Insurance is likely to be prohibitive for most bloggers, apart from those who may need it the most!

  21. says

    This creates an interesting debate on the content of news itself. While you can technically be charged for copyright infringement if you copy directly what someone writes, but if you offer a recap along the lines of slashdot.org, it is personalized content, just rephrased and linking to the original.

    Ultimately you shouldn’t be hindered for citing someone else’s news seeing as how news shouldn’t be controlled, as well as if you properly cite them.

  22. says

    I didn’t know about Vlad’s case, that is just ridiculous! And as far as the AP goes, why wouldn’t they want people quoting them? I mean, as long as they give credit where credit is due. It’s going to be a huge mess to clean up all the quotes and social bookmarks leading to them.

  23. says

    Associated Press has made it quite clear that the organization intends to put the hammer down on bloggers who quote that news service. As one who routinely quotes and links to Associated Press content, all I can say is, “Yeah, good luck with that.”

    At first, AP took a hard-line stance, demanding that one particular blog should remove seven pieces of content which featured quotes from AP articles and stating that bloggers across the internet should curtail the use of AP content. However, when faced with a swift backlash from a cross section of well-known and heavily-read bloggers, the news service took a big step back. The New York Times reported that Jim Kennedy, vice president and strategy director of The A.P., stated in an interview that the agency was “heavy-handed” and that A.P. would “rethink its policies toward bloggers.”

    Fair use doctrine not withstanding, this move by Associated Press is just plain stupid. Yes, as a writer who has had his own work “ripped” I agree that content theft is wrong. However, for a news service to come out against being quoted by blogs smacks of playground protectionism, nothing more. This is especially true when responsible bloggers are careful to properly cite their sources and link back to their original source articles. Associated Press probably gets more value from these practices than it knows.

    If The Associated Press wishes to police the internet for violations of its as-yet-undeclared official quotation policy, I think that’s fine, and I hope it has the resources to properly do the job. However, I don’t really believe AP is fully up to the task. It would take about 300 full-time content reviewers to sufficiently scour the blogs daily for quotation violations, and a well-heeled, fully-staffed legal stable would be needed to attempt to enforce sanctions via civil tort law.

    I’ll give Associated Press a hint about one trick which works well for tracing the abusive use of original content; By placing a seldom used word, which I call a “ripper tag word”, within your articles, you can more easily search the Internet for misuse of your content. One such word would be the term supercilious, as used to denote an attitude of superiority and haughtiness. I think that term well applies to the whining of Associated Press in this case.

    Some more additional info

  24. says

    WOW. I’ve seen it all now. Blogging insurance. At least Al Gore didn’t get his wish and tax every sale made online. But that’s a whole other debate I guess.

  25. says

    I think this is a very touchy subject and it all depends how someone interprets it. With internet and social networking in full force, it’s hard to control it.

    Peter

  26. says

    It’s a difficult one this. I’m all for free speech however I recently became aware that a comapany, that saw themselves as a business rival (not individual people) had taken to posting derogotory comments about my business on social network sites. I support free speech but this is a different issue although related to the above. Should social bookingmarking sites (or those who syndicate their content) have a moral/legal responsibilty to ensure that they are not being used in this way?

  27. Jon Cline says

    Thank you Andy for your coverage here. I was not aware of this case. Additionally, your readers in the US might consider looking into a Legal Insurance program here called Pre-Paid Legal. It is a terrible name but offers legal assistance and even court prep & defense for individuals and businesses starting at just $26/month.

    It is what I currently use.

    I can understand the need as Errors & Omissions insurance has been used in the publishing world for many years to offset this risk.

  28. says

    It does seem like having insurance for your blog doesn’t seem like such a bad idea – but I would want to know exactly what it is covering and it shouldn’t be too expensive. You have to be really careful with blogging – everything from using trademarks to copyright & of course there are people who will steal your stuff without a second thought.

  29. says

    AAP is truly a disgrace. The ironic thing about old media companies attacking new media (eg. blogs) is that increasingly they use the internet and blogs to provide their news stories.

    I think news agencies are increasingly under pressure financially so they don’t have the time to report as well as they used to. So they regurgitate stories from the internet. It is so often that I see a story on the front page of Digg then 3 days LATER it appears in the Sydney Morning Herald here in Australia.

    So the companies who are VERY touchy about their intellectual property rip an increasing amount of their news off the net.
    Jornalism is about to be shaken up bigtime by the internet and who knows what will be at the other end.

  30. says

    The issue here is old media failing to embrace new technology. The AP is trying to take print media standards and apply them to digital media, and it isn’t working, which is no surprise to those of us who have actually adapted to digital media.

    It’s just like the RIAA suing over music downloads, when it was clear from the start to anyone with half a functioning brain that they should have been embracing the technology instead of fighting it. The very first thing I thought when I heard of the music industry going after napster was, “Why aren’t they selling downloads themselves?” Even with the ability to download music legally, they still want to enforce standards that simply are not reasonable.

    I think the same principle is applying here. Instead of looking for the best way to compete in a digital market, the AP is looking to use brute force, and strongarm tactics to attempt to maintain control over content and it’s distribution. What they will most likely never realize is that they can’t control content and it’s distribution, and the attempt to do so is counterproductive.

    I hope that they see the same fate as the RIAA, which is to say, a serious decline in relevance.

    Creating a news summary based on their coverage containing all the facts might also land you in hot water.

    I’m going to have to agree with Ed Sutherland here, and say that they can’t copyright the facts of a story, or even the rewording of a story as mentioned. You site a case involving an actual direct quote, but that is not the same as the facts of a story. If you’re lifting quotes, I can see how that would infringe, but facts are facts. You can write the same exact story using different words, and it is NOT copyright infringement, any more than using the same chords in a song, but in a different order is copyright infringement. If that amounted to infringement, nearly every popular artist would be out of business. It doesn’t work that way, nor should it.

    The AP is doing a bang up job at relegating itself into complete irrelevance.

  31. says

    In a way speaking about blogging insurance is kind of funny, in another vein, rather serious. Since a good part of my day is spent either blogging, commenting or searching for news, I’m well acquainted with borrowing from here, grabbing a snippet from there, all the while thinking, changing and paraphrasing.

    On the flip side, I’d hate to see Digg, Propeller and others suffer from what is a very good way to get publicity (traffic) to your site.

    The world and particularly the net is a constantly changing and evolving medium. Thanks Andy… good post. As for me, I’ll add this then surf on over to Digg and see what kind of trouble I can get into.

  32. insuranceq says

    It is great to think that all bloggers should already have some kind of business liability insurance, but if you are barely covering hosting costs, or your earnings from blogging are not much more than national minimum wages, the thought of having to hire a lawyer on retainer just doesn’t enter into it.

Trackbacks