How Digg Handles DMCA Takedowns
Jay Adelson, the chief executive of Digg, told Saul Hansell of the New York Times how the social news site responds to DMCA takedowns:
From time to time, Digg has received a request, under the Digital Millennium Copyright Act to take down a post, or a comment, that contains copyrighted material. Mr. Adelson said the company complies without complaint. But he said that often isn't necessary. ...
But many of the items on the front page used headlines and descriptions lifted directly from the site to which they are linking. And in the active debate on the topic on Digg, I didn't find people arguing that Digg, such as here, has a policy that prefers paraphrases over quotes.
Adelson clarified his comments with the explanation that the site files all of its DMCA takedowns with Chilling Effects, a database of legal challenges issued to web sites. (I did so as well, but it hasn't been published yet.)
Chilling Effects has 18 DMCA takedowns filed against Digg, including eight filed in the month of May:
- Kappa Sigma Doesn't Digg Posted Manual, filed by Kappa Sigma Fraternity
- Drag City wants link dragged off Digg, filed by Drag City, Inc.
- How Not to Release a Bear - Photo, filed by an unnamed photographer
- Dark Knight Strikes Again, filed by Warner Brothers
- People Complains of Carey/Cannon Photo, filed by Time Inc. on behalf of People magazine
- People Complains of Carey/Cannon Photo, Again, filed by Time Inc. on behalf of People magazine
- No Time for Dugg Carey/Cannon Photos, filed by Time on behalf of People magazine
- Dark Knight Strikes Again, filed by Warner Brothers
- Pizza Hut Doesn't Dig Scanned Coupon, filed by Pizza Hut
- Dark Knight on the prowl for linked images, filed by Warner Brothers
- Unauthorized Use of Warner Bros.' Property, filed by Warner Brothers
- Dark Knight on the prowl for linked images, filed by Warner Brothers
- Time Doesn't Want Richie Photos Dugg, filed by Time Inc. on behalf of People magazine
- Zanpakuto complains of Dugg copy, filed by Zanpakuto.com
- Techthrob claims Digg linked to copied post, filed by techthrob.com
- USMLEworld complains to Digg about user comments, filed by USMLEWORLD, LLC
- Facebook Doesn't Digg Posted Source, filed by Facebook
- Farworks Doesn't Dig Digg Link to Far Side Video, filed by Farworks, Inc.
Digg replaces removed posts with a link to the DMCA takedown.
Like Hansell, I'm skeptical of Adelson's claim that Digg actively pursues and bans users who share links using the headlines and excerpts of news articles rather than putting both into their own words. Given the volume of contributions on the site, finding and evaluating whether its posts are fair use would be an enormous if not impossible task.
The DMCA takedown dispute with AP has ramifications for all social news sites that employ a model like the Drudge Retort and Digg, where short user blog entries are paired with long discussions that contain most of the analysis and user commentary. Michael Kwun, the senior staff attorney for the Electronic Frontier Foundation, believes we're on solid legal ground:
Drudge Retort posts regularly draw numerous comments, posted on the same web page, from Drudge Retort readers. This transforms the AP's content from (an excerpt from) a news story into a discussion and a debate.
How the Media Bloggers Association Got Involved
As I spend the morning reading stories about myself, a highly pleasurable activity that makes Rogers Cadenhead want to start referring to Rogers Cadenhead in the third person like Bob Dole, I have one question: Why is the Media Bloggers Association getting its ass kicked all over the Internet for attempting to have a dialogue with AP about the Drudge Retort's DMCA takedown dispute?
On Daily Kos yesterday, Markos Moulitsas wrote about the association with his typical subdued restraint:
The dumbasses at the Media Bloggers Association, of course, are walking right into that meeting because they crave nothing more than creating the impression that they, you know, represent bloggers (they don't). But anyone with an inkling of understanding of the law and principles at stake would know that the AP has no ground to stand on, and anything negotiated between them and the MBA will be ignored by the vast majority of bloggers anyway. If people haven't noticed, we're not the type of people that lets others do the talking for us. We do our own thing. ...
I will copy and paste as many words as I feel necessary to make my points and that I feel are within bounds of copyright law (and remember, I've got a JD and specialized in media law, so I know the rules pretty well).
There's a lot of misinformation out there about how the association got involved, primarily from people who'd like to know who the hell died and made them king of the blogosphere. The answer is simple: I asked 'em for help. Before any of the press took an interest in my situation, MBA director Robert Cox reached out to AP to see how the dispute could be resolved. Although the media has made a Thursday meeting with AP sound like some kind of blogger/media peace summit, the association's role is less grandiose.
I didn't know Cox prior to last Thursday, but I've since gotten a quick education in what the MBA does. He hears from 5-10 bloggers a week who face legal challenges, some quite desperate because of lawsuits filed against them. Most of these bloggers don't become a cause célèbre that draws media attention, so Cox is an enormously helpful person to know. Bloggers are facing legal challenges and lawsuits far more often than people realize, particularly from three groups: pharmaceutical companies, real estate developers and local government officials.
The Media Bloggers Association doesn't speak for "all bloggers" any more than the ACLU spoke for all jerkweeds when it represented the neo-Nazi paraders in the Skokie case. But I'm glad to find a group that can speak directly to the big issue here, which is the free speech right inherent in what bloggers have been doing on the Retort and thousands of sites like it around the web.
AP Rethinking Policy After Drudge Retort DMCA Takedowns
I'm gratified by the ginormous amount of support coming in from around the blogosphere after the Associated Press issued DMCA takedowns last week to Drudge Retort bloggers for excerpting short snippets of its articles. AP is rethinking its policy towards bloggers in the wake of this disagreement, according to a story by Saul Hansell in today's New York Times:
Last week, The AP took an unusually strict position against quotation of its work, sending a letter to the Drudge Retort asking it to remove seven items that contained quotations from AP articles ranging from 39 to 79 words.
On Saturday, The AP retreated. Jim Kennedy, vice president and strategy director of The AP, 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. ...
"We are not trying to sue bloggers," Mr. Kennedy said. "That would be the rough equivalent of suing grandma and the kids for stealing music."
Although that's not the end of the story -- AP has not withdrawn the takedowns -- Kennedy's comments are one reason I'm guardedly optimistic about the outcome.
As I was grappling with what to do about this situation, I got some great advice from my fellow liberal blogger Liza Sabater of Culture Kitchen: "This is, by the way, a moment when every blogger ought to know immediately who to contact: Robert Cox of Media Bloggers Association."
Cox's 1,000-member organization is like a blogger's ACLU, ensuring that the civil liberties issues inherent in blogging are staunchily defended from laws and litigation that could imperil online expression. In 2006, the group stood up for a Maine blogger, Lance Dutson, who was sued for criticizing an ad agency employed by the state's board of tourism. The agency dropped the suit within days after furious criticism from blogs sparked significant media coverage.
For his story, Hansell asked me whether I'd like to duke this out in court with AP. The answer is, of course, hell no. I'd rather they sued Kevin Rose of Digg, photographers dogging his steps into Manhattan federal court as he styles in an impeccably tailored suit chosen by his attorneys. The Retort's a hobby that got out of hand, a social news site that receives slightly less traffic than Digg. But 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.
When AP meets with the Media Bloggers Association this week, the titan of old media has an opportunity to set precedent by embracing the way that new media share its stories.
As a former newspaper journalist and proud J-school graduate, I'm living in a dream world where A.J. Liebling's cynical lament, "Freedom of the press is guaranteed only to those who own one," has been rendered obsolete by a medium in which the price of a press dropped to zero. I'd hate to see that disappear in a cloud of murky copyright litigation. Bloggers and social news site users will embrace media organizations that encourage them to link, share and excerpt their news articles.
AP Files 7 DMCA Takedowns Against Drudge Retort
I'm currently engaged in a legal disagreement with the Associated Press, which 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:
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."
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.
AP has filed copyright lawsuits against the VeriSign division Moreover last fall and another against the Florida company All Headline News this year.
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.
More information:
Followup posts:
Non-Disclosure Agreements Have No Saving Throw
Last Friday, Wizards of the Coast published the fourth edition of Dungeons & Dragons, the first major release of the game in eight years. During the development of the game, the company has been so generous with confidential information that it got almost 1,000 people locked under non-disclosure agreements.
The company has followed this up with a friendly warning that in spite of the game's release, these people are bound until the end of time by the agreement:
Q: Can I talk about my playtest experiences, or about the playtest versions of the rules?
A: No. That information is still considered confidential and may not be discussed, shared, or distributed in any way.
Q: Now that 4th Edition is on sale, is my NDA void?
A: Absolutely not. Your Non-Disclosure Agreement with Wizards of the Coast still obligates you to "keep strictly confidential all Confidential information" in your possession.
Q: But how is 4th Edition still considered confidential?
A: Once a product is published, the information presented in that product is no longer confidential. However, all prior versions of the rules (as well as playtest instructions and all other correspondence between you and Wizards of the Coast, Inc. regarding your playtest experiences) is still considered confidential.
In the new edition of the game, people who employ excessive secrecy are likely to be followers of Vecna, the chaotic evil god of necromancy and secrets. "He rules that which is not meant to be known and that which people wish to keep secret," according to page 163 of the Dungeon Master's Guide. "Evil spellcasters and conspirators pay him homage. He commands them to: Never reveal all you know" and "Find the seed of darkness in your heart and nourish it; find it in others and exploit it to your advantage."
Better Than Cup of Pizza
Onion News Network: New Wearable Feedbags Let Americans Eat More, Move Less.
-- Via Weighty Matters
Everybody Hates Scott McClellan
Robin D. Laws has a great take on Scott McClellan's tell-all book:
Even in the depths of his tenure as Bush press secretary, Scott McClellan always seemed to me like the most likely administration official to write a scathing tell-all. His divided consciousness was always visible as a series of tells that would have led him to the slaughter at any poker table. McClellan's deer-meets-headlights demeanor at tough press conferences signaled a lack of belief in his own statements—a fear that he might be caught out. Contrast this to the airy control of his predecessor, Ari Fleischer. Now he was a master. After an Ari Fleischer press conference, there was less information in the world than there had been before it.
Sure, McClellan is moving some books. Still, I can't help feeling a little sorry for him, and admiring the thoroughness with which he’s donned the hair shirt. His basic thesis couldn’t wring more hatred from all sides if it were calculated for that purpose. For the rightosphere, there’s the obvious act of betrayal of the team when it's already down. He assures the continued teeth-grinding of the leftosphere by insisting on a shred of personal admiration for the president they despise. And for failing to time his epiphany for greater strategic impact. If that's not enough, he poxes both ideological houses, blaming a culture of lawyerly spin, which he traces to the beginning of the Clinton era.
He calls this the permanent campaign, but the idea that a press secretary's chief function is not that of truth-teller of course predates this considerably. (See the Yes Minister episode where Sir Humphrey patiently explains to Hacker that one does not tell the truth, one expresses one's position.)
Just in case he might have an ally left in Washington, McClellan goes on to blame the press for its supine acceptance of the patent balderdash he guiltily dished at them.
I have trouble buying the argument that McClellan wrote his book for the money. The one-time windfall of a best-seller can't possibly compete with the lifelong opportunities that are available to top White House staffers after they escape. The disloyalty he's shown by being so frank in his criticisms blows his chance to make serious money working on GOP campaigns; delivering speeches; serving on corporate boards, think tanks and PACs; or gladhanding leaders as a lobbyist. Republicans won't hire him now and Democrats would be leery of trusting a guy who worked over his last boss.
The only place where the book helps McClellan's job prospects is at Media Matters for America, the liberal hell-raising group founded by fellow Republican turncoat David Brock.
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