Sometimes a news item comes out of nowhere, and it feels like a press release went through a time warp and just arrived from a decade ago. Rogers Cadenhead is a programmer and writer who set up a site called the Drudge Retort about 10 years ago, as an alternative to the right-wing Drudge Report. He says the Associated Press news agency has filed DMCA takedown requests for several items on the site, alleging that excerpts and links constitute an infringement of copyright and “a misappropriation of ‘hot news’ under New York State law.” This (as the philosopher Jeremy Bentham once put it) is nonsense on stilts.
The AP case is similar to a number of other cases the agency has launched over the past year or so, including one against the headline news service Moreover (which was started by Nick Denton of Gawker fame), and another against a service called All Headline News. But those cases involve companies whose sole business is distributing headline news to a variety of other sites — something the AP theoretically has an interest in curbing (or at least being compensated for).
The Drudge Retort, as far as I can tell, isn’t anything like that. Rogers Cadenhead doesn’t even put together the content on the site — it’s an aggregation of links and comments from a community of users. To me, that puts it even farther out of the range of the AP’s professional concerns, especially since the headlines and brief excerpts are linked back to the original source, just like Google News does. The bottom line is that the press agency’s case constitutes yet another in a series of creeping assaults on the idea of ‘fair use,’ as can be seen by the comments of the AP’s lawyer in a letter to Cadenhead:
“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.'”
As Salon founder Scott Rosenberg points out on his blog, the AP is almost certainly wrong. I would be willing to bet that a court would find in favour of Rogers Cadenhead on virtually every one of the five factors that are taken into account when the ‘fair use’ principle is applied. This case is yet another example of agencies like the AP — and the World Newspaper Association — trying to regain the control they used to have over access to the news, in an attempt to put the Internet genie back in the bottle. It’s not only dumb, but ultimately futile. Cyndy Aleo-Carreira at Profy thinks otherwise, but I believe that she is wrong — see the comments on her post for some back and forth between Cyndy and I.
Note:
If you’re wondering (as I was) about the curious phrase “misappropriation of ‘hot news’,” it refers to a common law principle that was defined by the U.S. Supreme Court almost a century ago, in 1918 — after the Associated Press sued a competing news agency (started by publishing legend William Randolph Hearst) for stealing its wire reports about the Great War. More details here if you’re interested.
Update:
Jim Kennedy, a vice-president and director of strategy for AP, sent a statement out about the Drudge Retort situation (it also appears as a comment on Cyndy’s post, and on Jeff Jarvis’s post at Buzzmachine — and a half-dozen other places — and is posted as a comment here as well). Here’s the full text of that statement:
“The 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.”
Jim Kennedy
VP and Director of Strategy for AP