Late Thursday night, AP issued the following statement after a day-long discussion of the DMCA takedowns issued to the Drudge Retort that reached all the way up to the company's top management:
In response to questions about the use of Associated Press content on the Drudge Retort web site, the AP was able to provide additional information to the operator of the site, Rogers Cadenhead, on Thursday. That information was aimed at enabling Mr. Cadenhead to bring the contributed content on his site into conformance with the policy he earlier set for his contributors. Both parties consider the matter closed.
In addition, the AP has had a constructive exchange of views this week with a number of interested parties in the blogging community about the relationship between news providers and bloggers and that dialogue will continue. The resolution of this matter illustrates that the interests of bloggers can be served while still respecting the intellectual property rights of news providers.
I'm glad that my personal legal dispute with the AP is resolved, thanks to the help of the Media Bloggers Association, but it does nothing to resolve the larger conflict between how AP interprets fair use and how thousands of people are sharing news on the web. You could probably guess that by the lack of detail in AP's statement.
I spent around two hours yesterday talking to AP attorneys about their specific objections to the user blog entries in dispute, going line by line through the text to pinpoint exactly where they have intellectual property concerns in the short excerpts that were posted. I won't reveal the details of this discussion until AP releases the guidelines for bloggers that it promised on Monday.
On a social news site that's still manageable in size, like the 8,500-member Drudge Retort, it's possible to steer bloggers away from potential conflicts with media organizations by working directly with users. But 25 million people visited a social news site last month, and thousands of people are sharing news links in a way that's in direct conflict with AP's interpretation of fair use regarding the headlines and leads of its articles.
If AP's guidelines end up like the ones they shared with me, we're headed for a Napster-style battle on the issue of fair use.
When it appeared that I might end up in court on this issue, I got offers of help from the Electronic Frontier Foundation, Public Citizen and the Stanford Fair Use Project. My attorney Wade Duchene and I were already working up the victory speech to deliver on the steps of the Supreme Court in the landmark First Amendment decision AP v. Me (Justices Stevens, Ginsburg, Breyer, Souter, Kennedy, Lessig, Tribe and Clinton concurring).
I think AP and other media organizations should focus on how to encourage bloggers to link their stories in the manner they like, rather than hoping their lawyers can rebottle the genie of social news. Given the publicity of this dispute, the first blogger sued for excerpting a news story will have the best pro bono legal representation that massive press attention can buy.
Although AP will be releasing guidelines, I don't think the news service will be able to concede any ground to the blogosphere. AP sells headline and lead-only services to customers. Asking the company to concede there's a way people can share this information for free is like asking the RIAA to pick its favorite file-sharing client.
If an expansive view of fair use is to remain in place, it's incumbent upon bloggers and our $500-an-hour friends in the legal community to define our own guidelines and fight for them. If we don't, big media companies will eventually define them for us, just as they've gotten the Digital Millenium Copyright Act and Copyright Term Extension Act passed in Congress.
I have learned that the Drudge Retort popped up on AP's radar through its use of Attributor technology to find potential cases of copyright infringement, as K.C. Jones reported in InformationWeek:
Attributor launched last year, with company representatives saying they would identify and "fingerprint" chunks of content from more than 10 billion pages on the Internet. The company provides a service to media outlets and other content creators to track how their content is reused online and whether the user has authorization to reproduce the material.
"Our agreement with Attributor will enable AP to safeguard its investment in creating and distributing news reports, while assuring licensees that unauthorized use will not diminish the value of their licenses," AP general counsel Srinandan Kasi explained in the announcement. "These services are part of the next-generation licensing and enforcement services we plan to provide to our global network of members and subscribers."
Earlier this year, Attributor told its customers that when a case might be fair use, it's better to ask for credit than to file a DMCA takedown:
No one wins when a DMCA notice is sent. First, unless you have an open and shut case, a DMCA notice can be a PR risk for the DMCA sender. Next, the site hosting the content has to deliver the bad news to its user putting them in an unfavorable spot. Finally, consumers lose overall because the result of content removal is one less place to find quality content. ...
You can't send a DMCA notice if it's Fair Use -- and Fair Use is usually not a black and white situation. The fairness of asking for a link is indisputable.
As a newspaper reader since age 8 and the spouse of an investigative reporter, I want the media to keep making enough money to afford the expensive and essential practice of journalism. I sure as hell don't want to do all that reporting myself.
If AP's core business is to report the news, blogs and social news sites send millions of people to its articles every day. Retort users have posted 41,000 links to news stories in the last four years, each link sending from 1,000 to 5,000 readers directly to a media site to read the article.
If its core business is to repackage the news, they're in as much trouble as every other middleman on the web.
The AP had a dispute with the Retort?
Rogers will you now boycott AP content on your site? It seems that many bloggers are banning AP as TechCrunch did.
So does it make sense to switch to Reuters instead of playing the AP game?
Interesting outcome, but it suggests that AP's business managers are still living in a 1992 world, and are unwilling to accept Fair Use.
Attributor's warning about DMCA/PR problems and advice to customers -- try to get a credit, rather than issuing a takedown -- is very telling. That company gets it.
Ian Lamont, Managing Editor, The Industry Standard
While you're waiting for the Ass. Press (the valid abbreviation I now use for all references to the organization) to make its 'guidelines' public, apparently Robert Cox (the MBA guy) has blurted out some key information (the "headline + lede paragraph" standard) in a long blog post that contains as much mea culpa as he is capable of for his role in the confusion. www.mediabloggers.org
It doesn't matter who Mr. Cox is. Any organization set up to do what the Media Bloggers Association is trying to do (and will need to do much more of in the future) needs to be more than a one-man operation. And it certainly doesn't help that he stopped accepting new members and let the MBA website atrophy while he worked on setting up a "bloggers liability insurance" offering (which he insists he'll make zero money off of). After several years of my work history in parts of the Insurance industry (and seeing my father's entire career there), I know damn well that Insurance is NOT the answer to a problem, it's just a way to protect yourself when you can't come up with an answer. And I, for one, don't want to take the fallback position YET.
Of course, you nailed it in your Twitter: "Getting people fired up in the blogosphere is not a profitable business model."
Rogers will you now boycott AP content on your site?
I'm going to wait and see what AP's guidelines look like.
I've followed this tempest with great interest. I'm glad you were able to at least find a small patch of middle ground with room enough for both sides on the dispute.
It will be interesting to see how AP responds in round 2 of the larger discussion over fair use and their intellectual rights.
That being said, this...
....on the steps of the Supreme Court in the landmark First Amendment decision AP v. Me (Justices Stevens, Ginsburg, Breyer, Souter, Kennedy, Lessig, Tribe and Clinton concurring).
....gave me the biggest laugh I've had all day. Sounds more like a nightmare than a dream to me. Given that you have a Clinton in the lineup, perhaps it is a wet dream?
The worst of the worst and then some.
Dear Associated Press,
Dare we walk this thin rope to purgatory and refer back to your own words that refer to us?
Oh yes, there is an AP story that relates to the issue that you yourselves created and you know that in that report is the temptation in every blogger to strip a line or two to play back at you.
But, no. No trims, no quips, no quotes. Your words will go unheard here. And after this brief comment, so too will this issue die because you have turned on those who were your closest allies.
No more AP quotes. No more AP links. Moreover, it is my personal hope that bloggers worldwide unite to demand that news aggregate pages like Yahoo and Google take down AP reports, period.
You don't like us, we don't like you. It works both ways.
Go to hell, AP. Go straight to hell, do not pass GO, do not collect a damned dime.
Excellent post and general observations here Rogers. What a fun adventure for you as well as a place in the history books analogous to the minutemen who fought off the British at Concord and Lexington, here played by Associated Press. These are the early shots heard round the world with the huge battle over the future of journalism...looming.
I doubt that any court would rule that a blogger could not quote the headline from an AP story, especially if a link back to the full story was provided. Quoting a headline in a blog is not quite the same as quoting the headline in a footnote, but the two practices are functionally equivalent.
Quoting the lead paragraph is another matter. I'm not sure how a court would handle that. But I am sure that no blogger worth his electrons would quote a lead paragraph; quoting the lead is indisputable evidence of intellectual sloth unless the lead itself is the subject of a story or commentary.
Eventually, I think, the AP will conclude that it wants its stories to be quoted, provided the quote is accompanied by proper attribution and a link back to the original story. As other commentators have noted, links back are an asset. I think it also will conclude that trying to enforce a draconian policy with a SPAM-like assault of take down notices is a fool's errand, although that conclusion may result not from thoughtful consideration but from a painful session in the school of hard knocks.
I'm admittedly not as informed on this issue as I'd like to be so in a weird way, this whole drama will have a positive effect as I and others bridge our knowledge gaps. It seems, though, that the AP is shooting itself in the foot and that by going after people who properly cite-the-site, so to speak, they're risking putting themselves in a terrible position; i.e., as purveyors of information, limiting the reach of that information seems self-defeating. Moreover, as the initial "offer" was one of an insanely greedy nature, many (like me) are put off, no matter what happens now. I agree with other commenters here that bloggers should consider giving them what they want--don't use their stories anymore and see how that works for them.
I'm not surprised Associated Press calls the issue "Hot News Misappropriation," because it would be next to impossible to claim "harm" from copyright infringement by someone quoting selectively and linking to already-published articles.
But while it's a stronger claim, "Hot News Misappropriation" could be very difficult to prove in the case of selective quoting and linking. This concept applies most strongly "before" news hits the public realm, or at least simultaneously with publication. That's when the news has the most value, because stealing it at that point CAN cause harm. Imagine stealing a reporter's story and printing it before it hits the press. Or linking to it in the seconds and minutes (not hours) after the story is distributed by AP. That's Hot News Misappropriation, as has already been defined in the courts.
Unfortunately, for the AP, you cannot own the news. You can own your words but, anyone can be privy to the news. You can own the photos but, in a nation that promotes the freedom of speech you cannot own the news itself.
AP cannot win over the millions of bloggers. AP should try to find a compromise that will benefit their reputation and the blogging community which, in the end will only make the AP look better and bring them more business. The blogging community is getting bigger by the minute and in reality the AP needs bloggers to survive.
AP has taken the arrogant role of "king", when they were never declared "king" by anyone other than themselves. What they are saying, without appearing to call forth eggs to their grill, is "It is OUR NEWS; Therefore, use OUR NEWS as we deem proper".
My question is: "Or what?"
I like the whole "Boycott the AP approach". Face it, with their viewership going way down, they become insignificant and maybe...just maybe, they will realize (and humbly repent) that it is THE READERS that gave them any significance to begin with.
This attitude of "we'll take our ball and go home" will only result in one less asshole on the ball-field - for it is no secret that it is THE READERS who provide the ball, not the (AP) writers.
It reminds me of that scene from the movie "TOMBSTONE" (Kurt Russel, Sam Elliot, Val Kilmer version), when the lackey sheriff walks up to "Wyatt" after the "O.K. Coral" scene and declares him under arrest. "Wyatt" replies, "I don't think I'll let you arrest me today, Sheriff".
And there ya go! Bloggers won't let the AP arrest us today...or ever.
Does anyone else feel that the AP is more than a little disingenuously about this? Another issue is that the AP has attempted to bury the issue and flooded the web with the headline " AP, blogger resolve dispute over copyright".. Considering that the AP walked away without resolving the issue...again I call them disingenuous.
This issue is too important to not hold AP's feet to the fire.
Seriously, the AP is fighting an unwinable battle. Very similar to what the RIAA and the MPAA are trying to do, they are actually causing more harm than good.
I'm very new at this and I'm just beginning to get my blog style and content sorted out. It consists primarily of news stories with commentaries by me. I do have a disclaimer at the bottom citing "fair use" and I always attribute quotes or reproductions to their originators as well as supply links to the original sites where I first found the story info. Obviously, I did some basic research on running a blog but now, I'm a little nervous about using quotes at all since I certainly don't have the money or connections to fight any kind of legal action.
I do believe that I'm doing everything I can to avoid that and, so far, I don't plan on backing down on my content. But I am going to be watching how AP defines its version of "fair use" very closely. Until they do that, of course I'm going to think twice or more about using anything even remotely associated (pun intended) with AP.
Thanks for the heads up.
Dave Winer contatced someone at AP regarding his new news site newsjunk.org. They reported told him his site was "OK".
And today Dave's site has this reference to an AP article:
The site uses the AP "lede" without any change displayed as a link the AP article:
3:33 AM: Obama braces for race-based ads.
and the text included is 39 words cut straight from the head paragraphs of the story.
"A presidential candidate who's named Hussein and wears a turban? A building that's called the White House but run by a black guy? Those political images and ideas already have found their way onto TV airwaves and campaign buttons. AP."
I don't comprehend a difference with the possible exception Rogers site allows readers to comment in the article without leaving the site and Dave's does not. It's a pure list of articles to click through to.
Hopefully, the AP will clarify what they intend to accept from other sites and what they will contest as infringing.
Dave says wait a bit for the AP to come to a fair conclusion... tic, tic, tic. Still waiting. Fair use, fairness and fair weather friends.
Steve, stick to posting sports and porn, you'll do fine.
@ Steve Krotz: You're best off actually ignoring AP's "policy" and using the guidelines set forth by the US Copyright Office, when figuring out if an instance of quoting is fair use:
You basically have to honestly ask yourself questions like:
1. What's the purpose and character of the use? Is it commercial or non-profit educational use?
2. What's the nature of the copyrighted work?
3. Is the amount of the quote or portion used too substantial in relation to the whole work excerpted?(In other words, "Does it take away too much from the copyrighted work in context or reference?")
4. What would be effect of the use on the potential market for or value of the copyrighted work? ("Does this use damage the value of the copyrighted work?")
And although it says the safest option is to contact the copyright holder, when dealing with AP it might not be, so either be very careful with using AP, use the purely factual parts of the news(but still link), avoid AP as a news source, or ask a lawyer if in doubt.
Has the AP announced a policy for bloggers yet? Or do you think they are just going to let this die and NOT send out any more DMCA takedown requests.
Would it help a defense lawyer to show that they do NOT enforce the rules unformly... see newsjunk.org as an example. Someone at the AP alledgedly advised Dave Winer that his site was "OK".
It would be nice for this type of linking and embedding of news text to be documented. I don't think a generous policy from the AP will do that. We need a top down legislative approach to new media that's NOT driven by the MSM interests.
Brave New Media Frontiers...
ERRATA: See "newsjunk.com" for AP "violations" that are NOT violations.
NOTE: I only noticed 1 example around 6/23 at 3:33. I should see if there are consistent "abuses" of AP content that are NOT being contested.
Settles in fer a long bitter slug-fest is more like.
Bottom line here is that the more AP plays it's legalistic games the less likely bloggers are gonna wanna utilise them as a resource.
Is this really a money issue or are the MSM getting a little choked at how blogworld is collectively holding their feet to the fire a lot more than back in the good old days with their carefully selected "Letters to the Editor" section?
Taking issue with the fact that blogworld informs the process more than ever these days by providing an independent feedback loop fer corporate news that includes folks calling shenanigans and deconstructing spin?
Gotta be part of it, anyway.
Until AP releases some definitive guidelines regarding their interpretation of "Fair Use" then Spud is gonna avoid linking to 'em or quoting them and stick to Reuters and the like.
Asspress needs to settle down and give their collective heads a shake.
Keep on keeping us informed, RC.
NowPublic defines itself as a "social networking" site, as does the Drudge Retort.
"Contributors" to NowPublic copy material directly from copyrighted publications and post the material to the NowPublic site with a link to original source. I've reviewed a number of these contributions. The pasted items are quite lengthy.
Take a look at this paste-job, copied from the New York Times.
This is a practice that's more-than-identical to what the Drudge Retort was challenged for, because the NowPublic paste jobs are much, much, much longer.
As someone pointed out, u cannot own the news but ur own words. I believe if a site reproduces ur headline as drudgereport is doing now with a link abck to ur site, it could be deemed as fair usage.
But quoting a whole or part of an article without proper credit is an infringement.