AP Takes on Drudge Retort Over Copyright Use
David Ardia
6:07 PM | bio | Comments: 10
Last week, the Associated Press ("AP") sent a takedown request under the Digital Millennium Copyright Act to Rogers
Cadenhead, the founder of Drudge Retort, a liberal alternative to (and parody of) the well-known Drudge Report,
demanding that he remove six user-submitted blog entries and one user
comment on the site that contained quotations from AP articles. Today,
the New York Times
reported that AP was reconsidering its request while it creates a set
of guidelines for bloggers and websites that excerpt AP material.
The Drudge Retort is a community site similar to Digg and Reddit, allowing its users to contribute blog entries, comments, and links to interesting news articles. According to Cadenhead, none of the six posts republished the full text of an AP story; instead, each contained quotes ranging in length from 33 to 79 words (although the posts have been removed, Cadenhead has provided a summary of them here).
Of course, you might be skeptical whether such minimal -- and no doubt widespread -- quoting of AP content is actually copyright infringement, and you'd be right. Indeed, a number of prominent bloggers took AP to task (see here and here) for sending the takedown notice and ignoring what has become the general practice in the blogging community of using headlines and excerpted quotes from MSM sources. As Jeff Jarvis notes, the AP "is ignoring the essential structure of the link architecture of the web. It is declaring war on blogs and commenters."
In fact, 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.
While the June 10, 2008 takedown request from AP only mentions copyright infringement as a justification for the removal, a June 3 letter sent by AP's Intellectual Property Governance Coordinator, Irene Keselman, also asserted a "hot news" misappropriation claim: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.
It doesn't appear, however, that AP is continuing to pursue a "hot news"
misappropriation claim against Drudge Retort, and for good reason. This
little known legal doctrine, which saw its genesis in 1918 in International News Service v. Associated Press,
248 U.S. 215 (1918), seems to have fallen out of favor because the 1976
Copyright Act preempts all legal and equitable rights that are
equivalent to the exclusive rights offered by federal copyright law. As
a result, in National Basketball Ass'n v. Motorola,
105 F.3d 841, 844 (1997), one of the few cases to address a "hot news"
claim, the Second Circuit set an exceptionally high standard for such
claims to be viable, requiring, among other things, that the
information be time-sensitive; the defendant be in direct competition
with the plaintiff; and the continued publishing of the "hot news"
would so reduce the plaintiff's incentive to produce the product or
service that its existence or quality would be substantially
threatened.
Accordingly, to succeed with a "hot news" misappropriation claim, 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 their continued publication would threaten
AP's existence.
Perhaps because AP recognizes that its legal claims against Drudge Retort and its users are weak or because it has realized that its "heavy handed" approach might be counterproductive, it announced that it would rethink its policies toward bloggers and come up with a set of guidelines for others to use its articles.
I think it's laudable that AP is rethinking its approach and planning to meet with representatives of the Media Bloggers Association and others, but let's be clear here. While AP is entitled to issue a set of guidelines for the use of its articles, these guidelines are not legally enforceable and they cannot narrow the scope of what is permissible under the fair use doctrine. The blogging community needs to be careful not to allow these guidelines to become a de facto set of norms that constrain the permissible uses of news content.
Fair use permits a broad array of innovative and transformative uses of copyrighted material. It also is essential to ensuring that copyright holders don't trample on First Amendment rights. In the end, AP and other news organizations will be better off if they work together with bloggers and community news sites to expand, enhance, and contextualize news. Let's hope the AP's guidelines take this into account.
(You can follow further developments in the AP's dealings with Drudge Retort in the Citizen Media Law Project's Legal Threats Database entry: Associated Press v. Drudge Retort.)
Creative Commons Attribution NC SA 3.0 License
To be fair use, it also, as you mention, has to be transformative. At least one of the posts (Clinton expects race to end next week) was only a title and quote. How would that be considered transformative?
Charles,
To be "fair," a use does not have to be transformative. Courts use a multi-part balancing test that goes, in part, something like this:
All things being equal, a use that is transformative (Google's image search, for instance, has been ruled by federal courts to be transformative) is more likely to be fair.
All things being equal, a shorter excerpt is more likely to be fair than a long one.
All things being equal, a non-profit use is more likely to be considered fair than a for-profit use.
All things being equal, a use that cannot act as a replacement for the original work is more likely to be fair than one that can be used as a replacement.
However, all of these things are balanced. In many cases, long excerpts, even complete reproductions, can be considered "fair" by courts. So can for-profit uses and uses that are not transformative.
David articulated the fair use test quite clearly. One of the things that makes fair use so difficult to get a handle on is the fact that it is a four factor balancing test. As he correctly states, a use doesn't have to be transformative to be considered a fair use, but it does increase the likelihood that courts will find it to be a fair use.
The same analysis applies to the other factors, which often makes it difficult to definitively predict how a court will rule.
In the article, you mention the "Media Bloggers Association". I have never heard of them. Nobody I know has ever heard of them. Are they just an AP astroturf organization?
Sid,
I've known Bob Cox, the president of the Media Bloggers Association, for several years and he is definitely not a proxy for the AP. He has written put up a post describing the MBA's involvement in the AP dispute: http://www.mediabloggers.org/robert-cox/backstory-on-ap-drudge-retort-issue
UPDATE: On June 20, 2008, Cadenhead and AP announced that they had settled their copyright dispute. The six posts in question, however, remain inaccessible on the Drudge Retort.
Hypocrisy and irony alert: Associated Press rips off a news report, without attribution or link, and it wasn't from one of its member papers either.
Disclosure: I do volunteer work for the Fund for Authentic Journalism, which supports the Narco New Bulletin.
Incredibly, I find that AP in 2007 signed an agreement to work with NowPublic.Com, a self-professed "social networking" site to use information from NowPublic's contributors.
I've reviewed NowPublic and find that "contributors" copy and past copyrighted material on the site with a link to the media source.
This is identical to what DrudgeRetort users were doing, with the exception that the pasted excerpts on NowPublic are quite lengthy.
I ask -- how can one "social networking" site do it and another (DrudgeRetort) is sandbagged?
Hypocrisy update: AP joined by New York Times, Washington Post, others in using information obtained by Bill Conroy of Narco News without credit.
@bill dupuy- Associated Press is obviously not being consistent in only going after DrudgeRetort, and it's a good point that they have a professional relationship with one of the thousands of high-profile sites they are ignoring. However, if NowPublic strains the bounds of Fair Use, it is a great example of why those bounds need to be expanded, not contracted. NowPublic takes the source of a story from any post -- a cross-posting, a link, a re-posting, or something completely original -- and allows media like photos and video to be attached to it, as well as commentary and comments and community ratings.
(Aside: And it runs on the Drupal content management system which my work and Related Content are for.)
(The conflicts of interest in this post are almost too numerous to mention: I volunteer for the Fund for Authentic Journalism which supports the Narco News Bulletin and I make my living deploying Drupal sites with Agaric Design Collective.)
Thinking this through even more, I question whether Associated Press actually has much say in the matter. These are the reasons:
(1) Much of the material Associated Press runs is taken from its member newspapers and publications. As soon as the member generates material, "Copyright is secured automatically when the work is created," according to the Copyright Office Thus, with material picked up from members, the original copyright rests with them, not Associated Press.
(2) Associated Press would be able to acquire the original copyright from the member source, but it takes written documentation and registration with the copyright office. It's unlikely, however, that the Washington Post is going to transfer all of its rights in full.
(3) Associated Press would be able to "share" the copyright under transfer rules, but it must have an agreement with the original author to do so. Just asking to use and redistribute the material shouldn't be sufficient.
**(My broadcast organization is a "subscriber member" of the Associated Press. Here is the total sum of all our membership agreement has to say about AP's right to use my material:
**"Subscriber shall, without cost to (AP), promptly make available to (AP) .... all information original to the Subscribe in all forms gathered by Subscriber that is spontaneous in its origin, for use in news report(s) of AP and its subsidiaries."
**That's it. No request to "share" copyright.
Associated Press may place the copyright notice on material I and other subscriber members turn over under our agreement, but it is meaningless. We've simply granted them a license to use it, not to share in the copyright.
I may place a copyright notice on any material I get from an associate and I may do it forever. But it has no meaning. Thus, the Associated Press notice on material picked up from the Washington Post similarly has no meaning.
The Copyright Office has no means or authority or desire to enforce the notion of copyrighted material. It is the concern of the original author who may, or may not, call on a trespasser to cease and desist.
My conclusion: Member subscribers of Associated Press have not taken steps to tell their press association to stop "pretending" to have the copyright authority over material they supply AP. But that's OK. They still own the copyright anyway. It cannot be taken away. By the same token, AP has oversteped in claiming rights they do not have.
All of this tempest about bloggers has been nothing more than "selective harrassment."