If Links Are Outlawed, Only Outlaws Will Have Links
While whom they remain angry at is somewhat nebulous, the venerable pillar of news reporting is looking to get a piece of the new media revenue pie by asserting greater control over their content. The current status quo is one where various types of web entities (such as Google, Yahoo!, and The Huffington Post) arrange licensing agreements in which they pay for the right to link to AP stories, audio, and videos. It is from here that the gray areas of the web emerge as sites, bloggers, and other aggregators link to the content that is generated through these AP licensees. On these tertiary sites, people can generate revenue from either ads or services that they provide while linking to AP product.
While stealing content is pretty straightforward, the trouble begins with linking of photographs, stories, summaries, and other copyrighted content. Such sites look to invoke the "fair use" for their use of the copyrighted materials since their argument is that they do not take substantial portions of the original works. While copyright law defines a "fair use" exemption, the criteria for determining such a case is less than crystal clear. By their own admission, there are no set parameters and it would require a case by case analysis of the works to determine whether "fair use" applies or not.
So, here lies the current dilemma: how does a link fit into the equation? The controlling document here is the Digital Rights Millennium Act, an act that was written and amended (and re-amended) before the current wave of web technology of the last two years. While current court cases provide a limited fair use protection to certain forms of linking (such as thumbnails and inlining (linking photographs from other servers)), there is a still a universe of circumstances under which links exist. There is no way that the current version of the DRMA addresses these new circumstances to any degree of satisfaction; in fact, I would agree with the Electronic Frontier Foundation that the inadequacies of this act create a internet ripple effect which do not reflect the current web reality. While I as a content creator am completely sympathetic to people who wish to control the fruits of their labors, the current laws and regulations apply obsolete or ill-fitting rules on those who wish to share content with the new tools and technology in use today.
There are those who say (and I am one of them) that the news print media has had over a decade to adapt to the new web environment. The signs that the current business model would not hold have been there with the reduction of readership and shrinking subscription base. It is only now that a new revenue stream has become apparent that the AP has determined itself to exercise control over the content. But this genie is out of the bottle, and the technological and social norms of the internet have done nothing but to make the sharing of information easier and more accessible. Once again, it is an industry that should be pushing innovation in technology by developing new methods of information delivery that will generate revenue and provide news while still embracing fair use as a means to increase site traffic and readership. For the AP to try to put the breaks on the link economy (which does exist) would be akin to trying keep a litter of puppies from escaping from a box; the constant effort to retain everything will prove to be exhausting and ultimately fatal to an flawed business model. There is nothing to fear in linking; if anything, it is a medium that should be embraced by the AP.
(Posted at Agnostic, Maybe)