RIAA of news biz? Associated Press bullies Drudge Retort with seven DMCA takedowns. Interactive e-book threat, eventually?

image What do you think, gang? One isolated case or a major threat to blogs and community sites? Is it okay for them to pick up leads and headlines from the big guys?

The Associated Press has issued DMCA takedown orders against Drudge Retort---that's with two t's in the second word---for allegedly violating copyright laws and engaging in '"hot news' misappropriation under New York state law." Here's an AP take-down letter along with the Retort's "Full summary of the alleged infringement" (added 2:25 p.m.). Later  I'll reproduce the full text of a response that AP graciously shared with me after the first version of this post, though I'm still concerned because of the issue of how much a blog can quote AP without being DMCA bait.

If Drudge Retort, Rogers Cadenhead's liberal version of Drudge Report, goes to court and loses, this could even have nasty repressions for interactive e-books, which, after all, could be hosting blogs and forums. And what about sites such as NewsTrust, which let community members critique the media, and which will reproduce headlines and pick up snippets, even if they may not be leads? Speaking of which, will blogs someday have to police commenters to prevent them from using even small excerpts?

Going after the New York Times next? Hardly! Media bullies at work

imageAll kinds of related issues exist. Are on-on-fly links fine but not regular ones? And when you link to a headline and  reproduce a lead, as Drudge Retort does, are you helping or hurting the linkee? I say helping, by driving traffic to the target site and giving it some Google juice.

Could the AP's actions be part of the old media's war against the new? It's more complicated than that. Smarter news giants actually encourage this kind of thing and themselves are in the news aggregation business. I'm a big fan of the New York Times Company's Blogrunner, for example, and guess what? It's pulling in headlines and leads from other newspapers and Web site. See screenshot below. Does the Times have expressed permission from linkees like the Washington Post?

image Bottom line: The AP has done many clueful things, and in fact, I'd hate for it to go out of business, given all the synergies between old and new media. But this is a classic case of a media Goliath begging for a well-placed stone in the forehead. Who will the AP pick on next? The New York Times Company? Or just little sites without the same legal resources? Meanwhile the current episode is tainting the image of the AP as a news cooperative, especially one that itself may be in problematic situations at times when it uses material from nonmembers. Stop it, AP! Don't sue; adjust your business model.

Where I'd empathize with AP (added at 2:24): Some commercial sites are reproducing TeleBlog posts in their entirety with just a link at the bottom. I'm not talking about aggregrators but Google-ad-platform sites. But that's different from noncommercial use or just excerpts. AP seems to be unnerved even by relatively brief excerpts. Come, guys---I want you to thrive. If the economics are right, I myself would be open to licensing arrangements to allow use of certain AP content that TeleBlog readers will never see without your authorization.

Related: Gawker item and Techmeme roundup, complete with reproduced leads..

AP response to us and other bloggers follows.

From Jim Kennedy, VP and director of strategy for AP:

AP wants to fill in some facts and perspective on its recent actions with the Drudge Retort, and also reassure those in the blogosphere about AP’s view of these situations. Yes, indeed, we are trying to protect our intellectual property online, as most news and content creators are around the world. But our interests in that regard extend only to instances that go beyond brief references and direct links to our coverage.

The Associated Press encourages the engagement of bloggers — large and small — in the news conversation of the day. Some of the largest blogs are licensed to display AP stories in full on a regular basis. We genuinely value and encourage referring links to our coverage, and even offer RSS feeds from www.ap.org, as do many of our licensed customers.

We get concerned, however, when we feel the use is more reproduction than reference, or when others are encouraged to cut and paste. That’s not good for original content creators; nor is it consistent with the link-based culture of the Internet that bloggers have cultivated so well.

In this particular case, we have had direct and helpful communication with the site in question, focusing only on these issues.

So, let’s be clear: Bloggers are an indispensable part of the new ecosystem, but Jeff Jarvis’ call for widespread reproduction of wholesale stories is out of synch with the environment he himself helped develop. There are many ways to inspire conversation about the news without misappropriating the content of original creators, whether they are the AP or fellow bloggers.

7 Comments on RIAA of news biz? Associated Press bullies Drudge Retort with seven DMCA takedowns. Interactive e-book threat, eventually?

  1. David, this alert us, your readers, to an interesting event. I would find it more helpful if it included information on fair use with perhaps interviews w. lawyers in that field (pro and anti-AP’s position, if you could find them.) Also information on how the Retort differed, if at all, from the practices of other sites you believe to be imperiled by the action. Maybe an interview (or a no comment, if that’s all you get) from AP and Retort.

  2. Beth, many thanks for your note, and I hope the above post serves as a handy heads-up for you and your colleagues at NewsTrust. Some very quick answers:

    The different sides: I link to detailed info from Drudge Retort’s owner, who in turn links to the AP’s side (also see more on the disputed examples). This should provide people with the gist of the arguments. I hope this direct link helps.

    Fair use: Here’s a little Wikipedia mention on fair use and linking. Yes, it would be great to see this topic explored in somewhat more depth, as I did when I was writing a linking-related piece for The Christian Science Monitor some years ago. The difference is that the Monitor paid me. Goes back to a topic I’ve mentioned again and again in a book context—the need for fair compensation for writers.

    The Drudge Retort’s situation vs. others: Via a screenshot I showed that the New York Times was picking up a headline and lead from the Washington Post. Now, it doesn’t rely on the Post as extensively as, I suspect, Drudge Retort replies on AP. But one case could lead to another. Meanwhile keep in mind that the Retort adds user comment—reducing the percentage of picked-up material. All this is significant from a fair use perspective. So you can see why, as a nonlawyer, I believe that the Times might want to take an interest in this case. But what about NewsTrust, the valuable site with which you’re involved? While the Retort’s situation is of interest to NewsTrust from a linking perspective, you’re probably safer because you don’t rely so much on leads and because you probably have more resources. I don’t see immediate imperilment. Rather it’s the one-precedent-building-on-another threat that I fear.

    Now—a little comment on blogging vs. formal news reporting. You’re getting into the difference between routine blog posts and full-fledged articles; would that I have the time that each item deserved! The question I always ask myself is, “How can I best serve my readers?” and based on their feelings, the answer seems to be, “Cover a wide range of topics.” As in this case, I provide links that readers can follow for more information, and of course I invite them to contribute their own information and opinions. I see the role of items like this as discussion-starters. Augment this with more reporting—beyond what I have time for? Sure! Just find me the funding to hire people familiar with the many arcane issues that I and other TeleBlog contributors cover! Meanwhile the current arrangement provides for authoritative commentary in areas where we’re strongest and handy pointers and discussion-starters for tangential areas. That, as I see it, is a public service even if, like NewsTrust, it is not traditional journalism. We’re a blog and community site, not the New York Times. I want to see both formats thrive and enjoy First Amendment protection! It’s great that you raised the questions you did—since it’s a handy way to remind people of the difference, and of our current mission.

    Thanks,
    David

  3. AP wants to fill in some facts and perspective on its recent actions with the Drudge Retort, and also reassure those in the blogosphere about AP’s view of these situations. Yes, indeed, we are trying to protect our intellectual property online, as most news and content creators are around the world. But our interests in that regard extend only to instances that go beyond brief references and direct links to our coverage.

    The Associated Press encourages the engagement of bloggers — large and small — in the news conversation of the day. Some of the largest blogs are licensed to display AP stories in full on a regular basis. We genuinely value and encourage referring links to our coverage, and even offer RSS feeds from http://www.ap.org, as do many of our licensed customers.

    We get concerned, however, when we feel the use is more reproduction than reference, or when others are encouraged to cut and paste. That’s not good for original content creators; nor is it consistent with the link-based culture of the Internet that bloggers have cultivated so well.

    In this particular case, we have had direct and helpful communication with the site in question, focusing only on these issues.

    So, let’s be clear: Bloggers are an indispensable part of the new ecosystem, but Jeff Jarvis’ call for widespread reproduction of wholesale stories is out of synch with the environment he himself helped develop. There are many ways to inspire conversation about the news without misappropriating the content of original creators, whether they are the AP or fellow bloggers.

    Jim Kennedy

    VP and Director of Strategy for AP

  4. >>>If Drudge Retort, Rogers Cadenhead’s liberal version of Drudge Report, goes to court and loses,

    Yeah, right. Good luck enforcing that. NOT!

  5. I’m not familiar w. Drudge Retort and thus cannot correlate the comment from AP to the site’s practices. Anybody want to weigh in?

    David, You sent me a link to your post and I replied w. the questions I saw as unanswered :) And, as folks will see if they visit NewsTrust.net, sometimes blogs outscore the Times et. al. based on our readers judgment of adherence to standards of journalistic quality.

  6. Beth: I’m hoping that Paul Colford or Jim Kennedy can comment here on the specific examples of alleged infringements by Drudge Retort–which they may not be able to do for legal reasons. Would be great to have the Retort guy jump in as well. Good to get some back and forth, in a civil way! As for blogs vs. news articles, here are several sets of criteria–at the least:

    (1) How you or I or anyone else would feel individually about something in our gut, based on commonsense criteria such s fairness or completeness.

    (2) The item as ALSO judged by journalistic conventions, which typically demand calling up the people written about. The blog world would bog down considerably if this happened. On the other hand, I would expect AP to follow the conventions. This is why we need both blogs and wire services; their missions are different. Blogs usually are supposed to be opinionated, while AP people are supposed to stay neutral. I’m talking about blog-blogs as opposed to newspaper blogs. Some news organizations would treat blogs as just another format for the usual reporting.

    (3) The extent to which people at NewsTrust itself might like something. Some NTers might demand that MSM conventions be followed, some might not. Not surprised that you say “sometimes.” It’ll vary.

    As always, many thanks for your useful contributions to the discussion!

    David

  7. I think David brings up a very interesting aspect of this and where fair use should be headed (though not necessarily where it is):

    “Where I’d empathize with AP (added at 2:24): Some commercial sites are reproducing TeleBlog posts in their entirety with just a link at the bottom. I’m not talking about aggregrators but Google-ad-platform sites. But that’s different from noncommercial use or just excerpts. AP seems to be unnerved even by relatively brief excerpts. Come, guys—I want you to thrive. If the economics are right, I myself would be open to licensing arrangements to allow use of certain AP content that TeleBlog readers will never see without your authorization.”

    I agree with the first part. Simply taking an AP story, posting it on a blog with no commentary is not fair use–its simply republishing, end of story.

    However, I have frequently quoted most or all of an AP story interspersed with my own commentary or criticism and this seems to be fairly common across the Internet. I’ve also run short excerpts without a lot of commentary that would fail the AP’s current test.

    One of the problems is that it is unclear whether the above practice is covered under fair use or not because, as the lawyers will put it, fair use is not so much an affirmative right as it is a particular defense against copyright infringement lawsuits. Michael Arrington seems to think it is self-evident that a 70 word quote from a long AP story is fair use, but since these things are resolved legally on a case-by-case basis, there’s really no basis for making that sort of claim. Certainly copyright infringement has been found in much smaller excerpts than that.

    Personally, I think what we need is a much more expansive, affirmative legal definition of fair use, but I’m probably more likely to be named the NBA MVP before that happens.

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