What is fair about fair use?

The blogosphere is abuzz about the question of fair use. The Associated Press filed a take down notice against a blogger (the Drudge Retort--that's Retort, not Report) under the Digital Millennium Copyright Act, which has prompted a groundswell of criticism. Writing in her influential Poynter Institute blog, E-Media Tidbits , Amy Gahran, suggested the action could have "a chilling effect on journalism and free speech."

The Poynter blog drew a number of comments, mostly critical of the AP. This one is fairly typical: "Have they lost their ever-loving minds? Yes, Amy, I believe they are hurting journalism, and they need to think long and hard about this."

Gahran raised a number of questions, trying to ascertain the press agency's policies on fair use. I certainly don't have the answers, but I may have some insights. Earlier this year, I researched this issue as part of a study on Internet regulation in the U.S., Korea and Japan. The project was led by Dr. Yong-suk Hwang, a Korean academic, and funded by Naver, the big Korean portal.

The AP's position essentially is if someone is making money from AP content, the wire service should benefit as well. While on the surface, it would seem there is nothing wrong with posting short excerpts from AP stories, the wire service argues that new media must share with old media its cost of operation. As Jane Seagrave, a top AP executive pointed out, “We have had people killed and jailed in Iraq. We support their widows and children.” (If you would like to read more about the AP's point of view, follow this link to the U.S. portion of the Korean study, which was released in Korean in April)