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.)