E-Media Tidbits

icopyright.net Here's what the Associated Press currently charges to quote their stories online. Prices start at $12.50 for five words. Um, what happened to fair use?

Stealing a page from Recording Industry Association of America's playbook (an act that does not violate copyright -- yet), the Associated Press apparently is trying to make a business model out of threatening to sue its market. Most recently, the target was the Drudge Retort -- a liberal community site that parodies Matt Drudge's famous conservative muckraking site.

On June 12 Rogers Cadenhead (who runs the Drudge Retort as a hobby) announced that AP had filed six Digital Millennium Copyright Act takedown requests "demanding the removal of blog entries and another for a user comment."

Elaborating on this legal action, Cadenhead wrote, "The 8,500 users of the [Drudge Retort] 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."

OK, I've got to ask: What is the point of threatening legal action against online publishers who quote as little as 33 words from a news story? Seems to me that could set a dangerous legal precedent that might backfire by severely hindering the practice of journalism. After all, this industry is rooted in the concept of free speech, and journalists often rely on the fair use provision of US copyright law to quote relevant passages from published sources.

AP reportedly has backed off from its initial stance. Yesterday the New York Times reported: "On Saturday, The AP retreated. Jim Kennedy, AP's vice president and strategy director, said in an interview that the news organization had decided that its letter to the Drudge Retort was 'heavy-handed' and that The AP was going to rethink its policies 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." (Thanks to Poynter's Julie Moos for pointing me to that article.)

Don't relax just yet. At the moment, this particular sword of Damocles still hangs over every online publisher's head. As of yesterday, Cadenhead reported that AP had not withdrawn the takedown notices. And while he does not wish to "duke this out in court with AP," Cadenhead also observed: "I'm not willing to avoid litigation by capitulating on an important principle: The link-and-excerpt culture we've established in blogging is the way that millions of people find, evaluate and understand the news. Short excerpts should constitute fair use, as long as the excerpts are brief and links are provided to the complete work."

As I write this, Jay Rosen just reported that Robert Cox of the Media Bloggers Association is right now meeting with AP. (CORRECTION: Originally I reported that, according to Rosen, Cox's goal in the meeting was to get AP to drop the action against Cadenhead. Cox contends that this interpretation of the meeting's purpose was technically incorrect. Cox explained that under the DMCA, Cadenhead -- as the site host for the Drudge Retort -- had no choice but to immediately obey AP's takedown notices, which he did. However, also under DMCA, the people who posted the content named in the June 10 notices -- which includes Cadenhead and some other site contributors -- have 10 days to file a counterclaim that could lead to restoration of the content. So Cox's contention is that the purpose of the June 17 meeting was to discuss counterclaim issues, not dropping the DMCA action, since both sides were complying with DMCA procedures. On June 18 Cox wrote, "This is why I asked AP to meet this week, just in case we are not able to work something out that satisfies Rogers.")

Yesterday AP characterized this meeting as "part of an effort to create standards for online use of AP stories by bloggers that would protect AP content without discouraging bloggers from legitimately quoting from it." (By the way, that quote from AP's own story on the flap totals 28 words. Does that meant that Poynter and I are safe from AP's lawyers? We'll see...)

However, even if AP drops this particular action against this particular site, it appears that the news giant has been trying to systematically profit from locking down fair use. Yesterday at Making Light, Patrick Nielsen Hayden noted that AP has "published a Web form through which intimidated parties can give the AP money in return for 'permission' to publish as few as five words." (Thanks to BoingBoing and for the tip, and to Chris O'Brien for pointing me to BoingBoing.) AP's quote licensing offer evidently predates the current AP/blogger flap.

...Hayden goes on to quip about AP's quote licensing, "In this spirit, I will shortly be putting up my own Web form through which people can PayPal me money in exchange for my promise to not blow up the moon."

It'll be interesting to see how this plays out. Seems to me that journalists and news orgs probably have more at stake on the free speech and fair use front than on the copyright and revenue front. What do you think? Please comment below.

UPDATE TO THIS STORY: AP/Blogger Debate Rages (June 19)