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Monday, June 16, 2008

The Associated Press, Bloggers, Boycotts, and Copyright Issues

The Associated Press filed six Digital Millenium Copyright Act takedown requests against the Drudge Retort claiming that the users linking to its stories are violating its copyright and committing "'hot news' misappropriation under New York state law.
The Drudge Retort has 8,500 users and is comparable in function with Digg, Reddit and Mixx and according to Rogers Cadenhead, the owner of the Drudge Retort, the site allows users to contribute blog entries that they write and links to interesting news articles on the web.

Many bloggers and citizen journalists will write articles, then use small quotes from the original source, where the original words need to be in context and exact so as to not misquote or misrepresent the story itself.

One example of the disputed entries on the Drudge Retort, to which the Associated Press sent the takedown request for, was a piece which included 18 words from an original Associated Press article, then a 32 word direct quote from Hillary Clinton. The disputed entry in question also linked to the original Associated press article.

Clinton Expects Race to End Next Week

Hillary Rodham Clinton says she expects her marathon Democratic race against Barack Obama to be resolved next week, as superdelegates decide who is the stronger candidate in the fall. "I think that after the final primaries, people are going to start making up their minds," she said. "I think that is the natural progression that one would expect."

The above quote is what the Associated Press claims is in violation of the Digital Millenium Copyright Act. (18 page PDF file)

As you can see, while the legal issues are getting worked out, the Drudge Retort has taken the original article offline and at the URL, they have this instead:

[The content of this blog entry has been removed in response to a DMCA Notice of Copyright Infringement filed by Associated Press]

In a letter dated June 3, 2008, from AP's Intellectual Property Governance Coordinator Irene Keselman, it said: purport that the Drudge Retort's users reproduce and display AP headlines and leads under a fair use defense. Please note that contrary to your assertion, AP considers that the Drudge Retort users' use of AP content does not fall within the parameters of fair use. The use is not fair use simply because the work copied happened to be a news article and that the use is of the headline and the first few sentences only. This is a misunderstanding of the doctrine of "fair use." AP considers taking the headline and lede of a story without a proper license to be an infringement of its copyrights, and additionally constitutes "hot news" misappropriation.

The Owner/Founder of TechCrunch which is one of the most popular blogs on the Internet, covering new start-ups, partnerships and news affecting the blogosphere, writes in the Washington Post today, and says that the AP should consider the linking to their original articles as a favor and not be suing over it.

He also claims that the short snippets used definitely falls under the fair use and copyright law and states that the "A.P. doesn't get to make it's own rules around how its content is used, if those rules are stricter than the law allows."

He then announces TechCrunch's new policy:

So here's our new policy on A.P. stories: they don't exist. We don't see them, we don't quote them, we don't link to them. They're banned until they abandon this new strategy, and I encourage others to do the same until they back down from these ridiculous attempts to stop the spread of information around the Internet.

One of the items in dispute is also a user comment, in the comment section of one of the articles, where the person commenting used a small quote from a Fox News report, which was written by an AP writer.

This has started a whirlwind in the blogosphere and the media with prominent and lesser known bloggers determining to simply not use any AP articles, but instead use Reuters, Agence-France-Press, McClatchy or IPS to stop driving any traffic whatsoever to any AP articles. They even set up a petition to start implementing their boycott against the AP.

Bloggers have joined in for what NewsHoggers calls a bipartisan boycott of the Associated Press.

After the news spread along the blogosphere this weekend, evidently the Associated Press saw the firestorm it had created and in the New York Times today, they report that Jim Kennedy, vice president and strategy director of The A.P, said in an interview that the letter sent to the Drudge Retort had been "heavyhanded" and the AP was going to rethink it's policy toward bloggers.

The quick about-face came, he said, because a number of well-known bloggers started criticizing its policy, claiming it would undercut the active discussion of the news that rages on sites, big and small, across the Internet.

On Friday, before the blogosphere started storming it's way to an all out boycott of AP, the Associated Press issued a statement saying, "when we feel the use is more reproduction than reference, or when others are encouraged to cut and paste.”

The backlash started immediately and the AP convened a meeting of its executives where they decided to suspend its efforts to challenge blogs until it creates a clear set of guidelines.

How they will differ with the law on fair use already on the books is a question they will have to answer after they define what they consider fair use.

Kennedy said the AP was going to meet with the Media Bloggers Association to help establish a set of guidelines.

According to a professor at the Columbia Law School, Timothy Wu, the standard the AP would have to prove would be that using excerpts from their articles would cause financial harm to the Associated Press.

“The principal question is whether the excerpt is a substitute for the story, or some established adaptation of the story,” said Timothy Wu, a professor at the Columbia Law School. Mr. Wu said that the case is not clear-cut, but he believes that The A.P. is likely to lose a court case to assert a claim on that issue.

“It’s hard to see how the Drudge Retort ‘first few lines’ is a substitute for the story,” Mr. Wu said.

As of the writing of this article, the AP has not withdrawn the legal challenge they presented to the Drudge Retort.

[Update] Here is a list of blogs on the right and the left that have signed the petition.

[Update] Email from a reader reminds me that Canada is fighting copyright issues as well.

we're fighting the same fight for Freedom of Expression here in Canada.