The Writing Office

While I was battling toothaches and celebrating family birthdays (including mine) this past week, the blogosphere was abuzz with talk about the Associated Press (AP) and what seems to me like an anti-blogger stance they have assumed.

From what I have read thus far today, the Drudge Retort reported on the 12th that the AP had issued 7 DMCA¹ takedown notices against the Drudge Retort earlier this month. The AP stated that Drudge Retort users had violated the AP’s copyright and misappropriated ‘hot news’ under New York state law - huh? Misappropriated hot news? What does that mean?

I looked it up even. Enter a search of “New York state law Misappropriated hot news” into the search engine and I turn up: NEWS PIRACY AND THE HOT NEWS DOCTRINE: ORIGINS IN LAW AND IMPLICATIONS FOR THE DIGITAL AGE by Victoria Smith Ekstrand.

Hmmm… first thing to catch my eye here is… (dare I quote from it?)… “INDEPENDENT NEWS SERVICE v. ASSOCIATED PRESS (1918)” 1918? Apparently the AP has been going after the little guy for at least the past 90 years. Sounds familiar even when you read what the case was about. William Randolph Hearst (Okay, so not the “little guy”) was battling “the upstart” AP. The trouble? The AP was saying that Hearst was stealing their news stories. Oh, that’s just too tantalizing, I’ll leave you all to read the rest of the article by Victoria Smith Ekstrand yourselves, I’m off to find out if there is any record for this case on the law books.

My search has lead me to An Introduction to Intellectual Property at the University of Connecticut School of Law. Here they have the transcript for the Supreme Court proceedings LEXSEE 248 U.S. 215 INTERNATIONAL NEWS SERVICE v. THE ASSOCIATED PRESS.

I’m no lawyer, but some things that caught my attention as I read the transcript of the proceedings include:

“…As long ago as 1774, the House of Lords in Donaldson v. Beckett, 4 Burr, 2408, note; 2 Brown’s P.C. 129, laid down principles which indicate that there can be no ownership in news at common law after publication….”²

“…The District Court, upon consideration of the bill and answer, with voluminous affidavits on both sides, granted a preliminary injunction under the first and second heads; but refused at that stage to restrain the systematic practice admittedly pursued by defendant, of taking news bodily from the bulletin boards and early editions of complainant’s newspapers and selling it as its own….”³

This last seems to state, to my understanding, that the District court had said that the defendant could not bribe members of the AP to sell stories before publication in AP newspapers, nor could they in any other way intercept news before publication and claim it as their own. The point that was in question was rather they could take news that was published within an AP newspaper’s bulletin boards, and in the early editions of those newspapers, and claim the already published news as their own when they sold it to their customers (who published newspapers themselves).

Am I missing something here, or is that not at all comparable to how the law is being bandied about today? The 1918 lawsuit had been against the resale of AP news to competing newspapers as being news the defendant had gathered their self. The bloggers that the AP seems to have got upset with are not reselling the news to anyone, nor were they claiming it as their own. They were publishing it as a report of the news and crediting the AP as their source of information.

I think I’m starting to get a legal headache here… and this post is unbelievably long, so I’ll stop now and find something else to do. Maybe I’ll go watch Simon & Simon reruns on Netflix. Who’m I kidding, I’m going to end up reading that court case beginning to end - probably even print it out and highlight key points in it. I’m such a dog with a bone. I’ll talk more about this later, for now I’m going to find something else to do and let my brain recover enough to look at it all with a fresh start and clear head. I’ll close with one more quote from the 1918 case in which Justice Pitney was speaking of the court’s opinion on the matter:

“…But the news element — the information respecting current events contained in the literary production — is not the creation of the writer, but is a report of matters that ordinarily are publici juris; it is the history of the day. It is not to be supposed that the framers of the Constitution, when they empowered Congress “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” (Const., Art I, § 8, par. 8), intended to confer upon one who might happen to be the first to report a historic event the exclusive right for any period to spread the knowledge of it….”⁴

In a nutshell… the Constitution did not mean to say that once news was reported, no one that read it could ever talk about it again. In reading the DMCA at the Copyright Office website I did notice one thing. Written in 1998, the document seemed to be addressing the issue of reproductions of complete works, not the excerpt of quoted and appropriately attributed text from within a document or article. The DMCA is something I am definitely going to be printing tonight and looking into more.

And I’ll hush now and let you go on about your normal late night Internet browsing. Thank you to anyone that has stayed with me to this point.

1. Digital Millennium Copyright Act [↩]
2. COUNSEL Mr. Samuel Untermyer and Mr. Hiram W. Johnson, with whom Mr. Louis Marshall, Mr. William A. DeFord and Mr. Henry A. Wise were on the briefs, for petitioner [↩]
3. COUNSEL Mr. Samuel Untermyer and Mr. Hiram W. Johnson, with whom Mr. Louis Marshall, Mr. William A. DeFord and Mr. Henry A. Wise were on the briefs, for petitioner [↩]
4. [*229] [**69] MR. JUSTICE PITNEY delivered the opinion of the court. [↩]

I found the points system that works right with the new version of Drupal, so I’m no longer searching for that.  Something I would like to find, however, is a AdSense sharing plugin that allowes the frequency of AdSense ads shown to be set per user.  That way I could set up the site to share revenue based on participation each month.  I think that would be a kewl way to do the AdSense sharing stuff.  I’m not sure how hard that modification would be to make for the AdSense Revenue Sharing plugins though.

I found a module for Drupal that allows me to give points to users on my websites that run Drupal, the trouble is that the thing does not work with the latest release of Drupal (6.2). I need to find something like that points system that will work with the latest version of Drupal, but can’t, does anyone know where there might be another version of this module?