Hidden Licenses and Tracking Beacons: The AP’s New News Technology

Today we feature a guest post by Peter Richman, who is a Beasley Scholar studying Internet and media law at Temple University Beasley School of Law. He is currently spending a semester abroad in Tel Aviv.

In the last ten years, the news industry has been turned on its head. The turmoil is everywhere – the Times cutting costs, dailies shutting down, blogs springing up. My favorite tally of the carnage/symbol of the times is the idiosyncratic Newspaper Death Watch, publishing vet Paul Gillin’s online column recording the “decline of newspapers and rebirth of journalism.” Gillin puts the news industry in a gray area between models, and that’s where we’ve been for a few years – somewhere between decline and rebirth.

To make sense of the flux, we need look no further than the words of The Joker – “If you’re good at something, never do it for free.” But at the turn of the century, when news publishers first launched websites, they did do it for free – they gave away their content and kickstarted the new millennium’s race to the bottom. The increased consumer access was matched step for step by increased publisher headaches. Circulation plummeted. Blogs took off. Classifieds moved online. The traditional revenue streams dried up and now, ten years later, news publishers are scrambling to stay afloat.

The industry has responded with a few ideas recently - charging for access to content, moving towards hyperlocal news. No single push is going to correct this tectonic shift but one particular proposal that has gained traction of late is the Associated Press (“AP”)’s plan to control the distribution of its news by wrapping content in an hNews microformat.

The hNews microformat is metadata embedded in a news article with two noteworthy features – 1) a licensing framework, and 2) a tracking beacon. The framework sets the legal terms and conditions for using the article. The AP has been tight-lipped about what, exactly, it plans to do with this framework, leaving open scenarios as benign as restating its copyright to as severe as stipulating that simply reading an article means you give up your fair use rights. But what is legally significant here is not so much the specific terms of the framework as the very fact that the AP is trying to control its content by binding its readers to a contract.

Maybe you’re thinking, “But isn’t this the Internet? How can they stop me?” And that’s where the second part of the hNews microformat comes in. The tracking beacon uses a technology called Attributor to track the content as it makes its way around the web. Attributor assigns a digital “fingerprint” to content and then crawls the web for relevant matches. What’s really neat about this technology is its ability to flag matches based on context and thus distinguish between authorized and unauthorized uses.

So what does this all mean?

Let’s say you’re a tech-savvy high school teacher who posts an AP story to your class’s website. Let’s say the AP embedded a license in the story stipulating that by reading the article, you forfeit all fair use rights to AP content. Let’s say the tracking beacon finds your website and the AP notifies you that you have violated your licensing agreement.

What happens next?

You probably say, “What licensing agreement? I didn’t agree to this!” and that cuts to the heart of the issue – can the AP enforce this metadata license against its readers?

It is fundamental contract law that 1) an enforceable contract requires the assent of both parties and 2) a party can manifest its assent by its conduct. In other words, if you know about the terms of a contract and act in a way that would signal your assent, you’ve assented.

Throughout the case law, the turning point here is notice – what constitutes adequate notice of the terms of a contract? What do AP readers need to do know in order to be bound by the license? The easy answer is an overt manifestation of assent, e.g. clicking an “I agree to be bound by this license” button, but the courts are willing to accept less. In the landmark online contracting case Specht v. Netscape Communications Corp., 150 F. Supp. 2d 585 (S.D.N.Y. 2001), the Southern District of New York suggested that a contract may indeed be enforced without explicit assent. If the terms are displayed prominently enough, with the right language, we can assume that a user who continues to use the licensed material has implicitly manifested his assent.

But the notice required for this implicit assent is a far cry from the licenses the AP is proposing. Under the hNews microformat, it’s difficult to imagine any scenario where an ordinary reader would have adequate notice of the terms. The license is embedded in the article’s metadata, hidden by our browsers, invisible to the Internet most users inhabit. The AP is free to to restrict use of its content as tightly as it wants – charge for access, publish less content. But if it chooses to do so through contracts, by restricting users’ behavior, it must give the users a chance to say no.

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For more information about the AP’s proposal, see the AP internal memo “Protect, Point, Pay — An Associated Press Plan for Reclaiming News Content Online” at the Nieman Journalism Lab.

For a technical overview of the hNews microformat, see the hNews wiki.

For more commentary on the state of the newspaper industry, see Goodbye to Newspapers? by Russell Baker in The New York Review of Books and Chris Anderson on the ‘freemium’ model in Wired Magazine.

Editor’s Note: For a really funny détournement of the AP graphic accompanying this article, go here. (RA)