AP Badly Mistaken on Drudge Retort

Last week, the Associated Press decided that the Drudge Retort was in violation of copyright laws because it excerpted parts of AP stories and linked to them. The AP legal team sent a cease-and-desist letter to Drudge Retort’s owner, the technology book author Rogers Cadenhead.

The ensuing brouhaha was not surprising, with bloggers crying foul and coming to the defense of Cadenhead and attacking the AP. BuzzMachine blogger Jeff Jarvis headlined his angry post, FU AP (he later had a more calm reaction). Many of these blogosphere blowouts usually have a grain of truth on each side of the dividing line, but in this case, the AP has blown it whole hog. Let me count the ways:

1. The AP is essentially arguing that anyone who excerpts 33 to 79 words from its articles are breaking copyright law — even if they link to the article and rewrite the headlines. Cadenhead noted that out of six of the blog posts he had to take down, five of them had their own headlines written by users.

2. One news organization (even a cooperative of other news organizations) is not going to set the policy on “Fair Use” of content online. Blogs, aggregators and user-generated news sites such as Digg have been using links and excerpts since the beginning of (Internet) time, and no legal challenge has stopped them from doing that.

3. While the AP eventually said it was reconsidering its stance on Drudge Retort and wants to set guidelines on what it thinks bloggers should be allowed to use, it did not retract its takedown notice on Drudge Retort.

4. The AP is hurting itself by making bloggers think twice about linking to their stories — and by extension, the stories of its member news outlets. No links means no traffic. No traffic means no readership. You can see where that leads.

5. As Jarvis rightly points out, the AP is looking mighty hypocritical in asking people to credit its stories correctly when the AP itself runs other news organizations’ material in its feed without crediting them. This is obviously a very different issue, but this is the kind of thing that comes out in the open when you start a very public tiff.

No Legal Standing

Probably the worst part for the AP in this whole matter is that they probably don’t have a legal leg to stand on. David Ardia of the Citizen Media Law Project calmly went through the AP’s side, knocking down their claims:

[First] it is very likely that the posts AP is complaining about on Drudge Retort are permissible fair uses under the Copyright Act. First, several posts appear to be offering commentary on recent news items. The use of another’s copyrighted work for the purpose of criticism, news reporting, or commentary, will generally weigh in favor of fair use.

Second, all of the posts use fewer than 80 words from the original AP articles. While there is no bright line that defines how much of a copyrighted work can be copied and still be considered fair use, courts will consider the amount and importance of the material copied in assessing what is permissible. I can’t tell how long the original AP articles were, but it’s likely that all of the articles were substantially longer than 80 words.

Third, it is hard to see how the posting of AP headlines and 80 word snippets could possibly impair the market for the original AP articles (when evaluating fair use claims, courts are most concerned with whether the copying will undercut the market for the original work). Instead, the posts AP is complaining about would seem to be doing just the opposite. Users of Drudge Retort, and sites like it, post these headlines and snippets for the very purpose of alerting others that some interesting piece of news exists. These snippets invariably include links to the original articles and serve to drive traffic to the site hosting the original AP story.

The AP also claimed that the Drudge Retort would be liable under a “hot news” misappropriation, but Ardia also knocked that claim down:

The AP would have to prove not only that the Drudge Retort is a direct competitor to the AP, but also that its headlines and text were time-sensitive and Retort’s use of this content would so harm the 1,500 member news cooperative that the continued publication would threaten AP’s existence.

Finding Common Ground

To put it bluntly: The AP was badly mistaken in making this cease-and-desist letter. While the AP is clearly in the right when a site or blog uses an entire story without permission, the brief excerpts and links have been acceptable behavior for years online. I don’t see how a court could decide otherwise.

However, many blogs have taken this case too far themselves. Michael Arrington at TechCrunch says he’s banning links to AP stories and there’s been a petition to boycott the AP among bloggers. The New York Times’ Saul Hansell rightly points out that blogger boycotts won’t amount to much, and that bloggers should take up the AP’s offer for constructive conversation instead of destructive hyperbole.

It does appear that a conversation has started between the Associated Press and the Media Bloggers Association’s Robert Cox, who has dealt with blogger litigation in the past. The AP’s Jim Kennedy has tried to downplay the brouhaha as well, telling the Times: “We are not trying to sue bloggers. That would be the rough equivalent of suing grandma and the kids for stealing music. That is not what we are trying to do.”

Hopefully not. Perhaps the AP and bloggers and member news outlets and aggregators can come up with some flexible guidelines on fair use of content online. It seems unlikely they will come up with something to satisfy everyone — or that everyone will follow those guidelines. More likely, the AP will slowly…very slowly…learn to live with the way content is shared and promoted online, and accept those excerpts as being a way of online life.

What do you think? Was the AP right in calling for excerpts to be taken down? Was it wrong and should Cadenhead go to court if necessary? Do you think there should be better guidelines for fair use of content online? Share your thoughts in the comments below.

UPDATE: Mathew Ingram argues that Hansell is wrong in saying bloggers should talk with the AP:

The AP doesn’thave to offer a “safe harbor” to bloggers or other media sites under certain circumstances. The fair use exemption under U.S. copyright law already does that, whether the newswire likes it or not (and clearly it doesn’t). If it wants to get someone to say whether a few sentences excerpted on a blog qualifies or not, then it can go to court and try to get a judge to do so. But sitting down and trying to negotiate some kind of blanket pass for something that is already permitted under law seems like a mug’s game.

Sounds right. While I do think that constructive conversation can be a good thing in a dispute, the AP should have taken that route in the beginning, and not used the blunt force of a cease-and-desist letter. Now, after the fact, trying to set up some kind of guidlines sounds like a backhanded way to get out of its self-created mess. Better idea: Drop the cease-and-desist, apologize for the misunderstanding and hope bloggers stop their rubbernecking…

UPDATE 2: Robert Cox, who runs the Media Bloggers Association, decided it was high time to set the record straight on this very heated story. In a great blog post detailing what’s going on behind the scenes as the MBA provides legal assistance to Cadenhead, Cox explains that:

> The AP had actually asked Drudge Retort to take down posts in April that contained entire copies of AP stories and headlines — so there is some history between them.

> In this case, the AP served take-down notices and Cadenhead took down the content as per the Digital Millennium Copyright Act’s rules. Cadenhead now has until Friday to counter-claim that he can put the posts back up, which would lead to a court case or settlement.

> The AP and MBA are not trying to come up with fair use guidelines for the entire blogosphere. The idea was that the AP could help come up with guidelines for bloggers so they don’t run afoul of the wire service in excerpting and linking to stories.

> The MBA is not some get-rich-quick scam, as Gawker has been saying. The Association, of which I am a founding member, actually helps member bloggers out in legal cases for free. There are questions around having an organization as some sort of mouthpiece for media bloggers, but most prominent bloggers support the work they’re doing.

I still believe that the AP made some serious errors in sending the take-down notices to Drudge Retort, and perhaps it will teach other news outlets to be careful about the ramifications (and bad PR) possible from heavy-handed attempts at protecting copyrighted material.