By Justin Silverman

The Associated Press on Monday announced a plan to curtail the online distribution of its content, specifically on websites and news aggregators that may summarize a story rather than just providing a link.

“We can no longer stand by and watch others walk off with our work under misguided legal theories,” Chairman Dean Singleton said, according to an AP press release. 

As part of this effort, the AP will track content distributed online and determine if it is being legally used. Whether or not it is being used legally most often comes down to the doctrine of Fair Use.

For example, a website that lists news summaries, such as Google News, is using copyrighted work. Under the Fair Use doctrine, however, using such copyrighted work is allowed, usually if used for criticism, comment, news reporting, teaching, scholarship or research. Fair Use also protects those who take a copyrighted product and transform it into something new and different.

When determining whether Fair Use applies, courts consider (1) the purpose and character of the use, including whether such use is commercial or non-profit, (2) the nature of the copyrighted work, (3) the amount of the original work used in relation to the new product and (4) the effect of the use upon the potential market for or value of the copyrighted work. 

In its announcement earlier this week, the AP detailed its plans to revamp its subscription policies with affiliate newspapers. But maybe more focus should be on the actual readers, rather than the newspapers and websites that distribute the content. 

Even with ads on their respective sites, news aggregators have a compelling Fair Use argument so long as they limit the use of AP content to a headline and sentence or two of the story. This practice also ensures that the public has access to the news, even if it lacks the depth a full-article would provide.

I think the AP would benefit from a micropayment, or cost-per-article, fee to read that story in its entirety. (The New York Times explores this scenario here.) Such a program would still allow aggregators to tease AP content, but would allow the wire service to derive additional revenue from the traffic provided via link. Rather than fighting sites that simply summarize its content, it should instead help those sites link to an AP site where the full article is available. Currently the AP doesn’t host its content and those looking to read it need to find sources whom pay for the right to publish that content. 

By making that content available direct on its site, the AP would be able to better profit from the material and give smaller non-subscriber sites an opportunity to drive more traffic its way.