AP Hits Social News Site with 7 DMCA Takedowns
By Rogers Cadenhead
Thursday, June 12, 2008 at 04:00 PM
The Associated Press claims that Drudge Retort users linking to its stories are violating its copyright and committing "'hot news' misappropriation under New York state law." An AP attorney filed six Digital Millenium Copyright Act takedown requests this week demanding the removal of blog entries and another for a user comment.
The Retort is a community site comparable in function to Digg, Reddit and Mixx. The 8,500 users of the site contribute blog entries of their own authorship and links to interesting news articles on the web, which appear immediately on the site. None of the six entries challenged by AP, which include two that I posted myself, contains the full text of an AP story or anything close to it. They reproduce short excerpts of the articles -- ranging in length from 33 to 79 words -- and five of the six have a user-created headline.
Here's one of the six disputed blog entries:
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."
If you follow the link, you'll see that the blog entry reproduces 18 words from the story and a 32-word quote by Hillary Clinton under a user-written headline. The blog entry drew 108 comments in the ensuing discussion.
I have all the expertise in intellectual property law of somebody who's never been sued, so standard disclaimers apply. But I have difficulty seeing how it violates copyright law for a blogger to link to a news story with a short snippet of the story in furtherance of public discussion.
AP feels otherwise. In a June 3 letter, AP's Intellectual Property Governance Coordinator Irene Keselman told me:
... you 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.
In another DMCA takedown, AP contends that the following user comment is a copyright violation:
Well, the oil execs just put another refinery in South Dakota. Maybe they're a bunch of retards.
Hyperion has said the project, about 60 miles south of Sioux Falls, would create 1,800 permanent jobs and another 4,500 construction jobs over a four-year period. Construction could begin in 2010.
The Hyperion Energy Center would process 400,000 barrels of thick Canadian crude oil a day, which company executives say would help the U.S. reduce its dependence on overseas oil. The company has said it will bring in the crude oil by pipeline but has announced no specific plans for that transportation link.
The user reproduced the last two paragraphs of his comment from the linked Fox News article, written by AP.
I have no desire to be the third member of that club, but sharing links to news stories of interest has become an essential component of how millions of people read and evaluate the news today. When linking to articles, bloggers commonly include excerpts of the article for the purposes of criticism or discussion. Some AP member sites encourage this kind of reuse. Yahoo News, the source for two disputed stories, invites bloggers to use items from its RSS feeds. USA Today, the source for two others, includes a browser widget alongside articles that facilitates their submission to Digg, Mixx and other sites. Wade Duchene, the attorney who helped me win the domain name arbitration for Wargames.Com, says that what we're doing on the Retort is the "absolute definition of fair use."
The DMCA requires that the six blog entries and comment immediately be taken down, regardless of whether I think they're fair use, but users have the option to file counter-notices to AP asserting their own copyright. Because the issue affects all bloggers, I've invited Keselman to explain AP's position at more length. If she accepts I'll post it in full here on Workbench and the Retort.
Assuming I have copyright permission, of course.
AP is apparently under the impression that use of excerpts and links is somehow costing it money, and/or fears that the explosion of news-related web sites on the web will somehow damage it in the future. Whether that's true is a real question. I don't see anyone using the Retort as a substitute for subscribing to AP, or even as a substitute for subscribing to an entity that subscribes to AP.
The problem you're facing is the classic mismatch of resources. AP can afford to spend a bundle on a claim that might well lose, while you probably have severe limitations on what you can afford to spend on a claim that might win.
The "fair use" doctrine was originated by the courts, and like most common law doctrines that end up being incorporated into a statute, the application of the doctrine to a real world case is very hazy.
Here's what the US Copyright Office has to say about fair use (emphasis added):
One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code). One of the more important limitations is the doctrine of "fair use." Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered "fair," such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
--the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
--the nature of the copyrighted work;
--amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
--the effect of the use upon the potential market for or value of the copyrighted work.
The distinction between "fair use" and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: "quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported."
Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work.
The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.
When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of "fair use" would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered "fair" nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.
FL-102, Revised July 2006
The third and fourth factors certainly seem to be on your side, but that's just my opinion.
I think the fair use doctrine pretty clearly would protect any blog entries critiquing the AP story, and there's a pretty good argument that fair use protects a reasonable length excerpt from an AP story when that excerpt is only part of a larger story using multiple sources.
this case is all about the business of news.. The same applies with the Moreover, All Headine News and other cases that AP is litigating.
The web, modern communication and modern society have all but eliminated the need for the Associated Press.
Like the other cases the AP is bullying companies with the weight and cost of litigation. The AP is trying to achieve what it can't through other means.
I think and would argue that Fair Use clearly protects Drudge Retort here, the problem is that Drudge is afraid to stand up for what is right because of the costs and resources involved.
Again "Big Media" (in the form of AP) fails its duty and does a disservice to the public and the public interest.
You would think that the AP would have a little more sympathy for freedom of the press, which I do recognize blogs as.
The AP frequently uses the "fair use" doctrine to defend their use of snips and quotes from other sources, yet when others do the same to them they scream about it being unfair? They seriously need a reality check and maybe a few lawsuits against them when they do the same thing to others. At least the bloggers include a link to the AP story for people to get the whole thing.
The Associated Press should keep one thing in particular in mind. Bloggers referencing and linking to their articles brings a great deal of VALUABLE UNPAID PUBLICITY to the AP.
And they want to sue the bloggers?