The Associated Press (AP) announced Monday, April 6, 2009 that it is launching an initiative to control the online use of content created by its newspaper members. The association’s plan is to aggressively seek licensing for any and all uses of its content — including uses such as repeating headlines with a link to the AP article itself — which most copyright experts believe are “fair use” under Section 107 of the 1978 Copyright Act.

The AP’s karma has been sinking in the online world lately. Between the high-profile copyright lawsuit against Obama poster artist Shepard Fairey and dodgy DMCA takedown claims against bloggers for reprinting brief quotes from news stories and then linking the source, the AP is poised to become the most-hated intellectual property association since the RIAA.

Here’s the text of Section 107 of the Copyright Act:

§ 107. Limitations on exclusive rights: Fair use

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Notice the phrase above: “for purposes such as criticism, comment, news reporting, teaching…scholarship or research, is not an infringement of copyright.” Traditionally, “comment and news reporting” are highly protected fair uses of copyrighted works — due to the conscious interplay between copyright “fair use” and the requirements of the First Amendment to the US Constitution, which states that “Congress shall make no law…abridging the freedom of speech, or of the press.”

Let me pause and note the irony of this: The AP lives and dies by the First Amendment, and relies upon the First Amendment daily in its own “fair use” of the copyrighted works of others.

If not a valid copyright argument, what legal legs can the AP be standing on? A quasi-copyright doctrine called “misappropriation” and/or the “hot news doctrine” which, ironically, was of the AP’s own making in 1918. In the case of INS v. AP, 248 U.S. 215 (1918), the INS (long dead and gone news agency) was the target of a legal attack by the AP for copying news. The INS gained access to AP news through early editions of newspapers, rewrote the news, and published in on the West coast at the same time or prior to the AP’s own publication. The Supreme Court held that news (and facts) were not copyrightable — but went on to use the general legal principles of unfair competition to create a “proprietary right” against “misappropriation” in “hot news.”

The INS v. AP decision has been much-criticized by judges, copyright experts and legal scholars in the intervening 90 years, but it is very much alive. While there was no development of the doctrine for decades, in 1997 the Second Circuit breathed new life into the “misappropriation” doctrine in National Basketball Association v. Motorola, Inc. d/b/a Sportstrax, which held that Motorola could not transmit scores or other data about NBA games in progress via a system of subscription pagers (remember pagers?) or an online AOL presence. And as recently as February 2009, the AP won a legal victory against AHN for using AP content as the basis for writing news stories and publishing them on the web.

I’ll be writing more soon about the hot news / misappropriation doctrine. For now, I’ll just state the obvious: taking on the thousands of bloggers cutting and pasting and quoting and hyperlinking news stores from around the web is going to prove much less popular than the RIAA’s campaign against college students and grannies: bloggers are not only invested in the outcome, they are committed content providers in the habit of expressing their opinions daily in thousands of locations around the internet.

It has the makings of a fair fight, and it will be interesting to watch.