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

About the author

Mathew 2414 posts

I'm a Toronto-based former senior writer with Gigaom and my favorite things to write about are social technology, media and the evolution of online behavior

25 Responses to “Someone please buy AP a clue”
  1. […] of how information is shared on the Internet will need to change radically. Best quip award goes to Mathew Ingram: “It’s not only dumb, but ultimately […]

  2. 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

    • In reply to Jim Kennedy of the AP:

      I think the unsaid meaning here is bloggers are free to particpate in the news conversation of the day as long as you pay the AP. It's pretty clear from recent lawsuits that the Associated Press feels entitled to own the news. The AP has enjoyed a monopoly for probably much too long I fear and is behaving like a bully.

      The facts of the news are in the Public Domain the facts of the news are Publici juris and no business may own the rights to fact not even the AP.

      It is also clear that the AP has made the “Strategic” decision to use the faulty and nebulous doctrine of Hot News misappropriation as web 2.0, the internet, modern communications , technology, and public perception threaten their very existence.

      I think it will be very interesting to see how current and future case law will further impact and erode AP's business.

  3. The same thing was done to SnappedShot a while back, but for political reasons. SnappedShot was using images by the AP to protest the Israeli occupation of Palestine – the AP demanded they remove all photos pertaining to the Palestine-Israel conflict for “copyright” reasons.

    Example with pictures stripped: http://www.snappedshot.com/archives/932-How-Peo

    Author's article on the legal threats:
    http://www.snappedshot.com/archives/1692-And-Th

    • Dastardly AP. They must be an agent of the Zionist conspiracy

  4. […] at the heart of many disputes involving new media, with the recent Associated Press flap being just the latest example (for info on some others — including the recently proposed Canadian copyright law […]

  5. […] The stories over the weekend were bad enough – the Associated Press went after Drudge Retort for having the audacity to link to their stories along with short quotations via reader submisisons. Drudge Report is doing nothing different than what Digg, TechMeme, Mixx and dozens of other sites do, and frankly the fact that they are being linked to should be considered a favor. […]

  6. […] otros sitios hacer, y francamente el hecho de que se les está vinculada a debe ser considera un favor […]

  7. […] is banning A.P. stories in response to its clueless policy on references by bloggers. Has me wondering – what if the entire blogosphere banned A.P.? […]

  8. […] news blog that is about as far from a commercial media entity as you can get — for excerpting its news stories, Associated Press has decided to create new rules about how much of their content blogs and other […]

  9. […] Ingram, in “Someone please buy AP a clue” asserted: “The bottom line is that the press agency’s case constitutes yet another […]

  10. […] связаны с следует рассмотрел неопределенный артикль фавор […]

  11. […] dozens of other sites do, and frankly the fact that they are being linked to should be considered a favor.  After heavy criticism over the last few days, the A.P. is in damage control mode, says the […]

  12. […] blogosphere spent the weekend lambasting the A.P. for overstepping the bounds of copyrights. The A.P.’s VP and Director of […]

  13. […] “cease and desist” letter (if you need help with the background, see this post and also this post). “What the A.P. is offering has the potential to be a great deal more constructive than Mr. […]

  14. […] The stories over the weekend were bad enough – the Associated Press, with a long history of suing over quotations from their articles, went after Drudge Retort for having the audacity to link to their stories along with short quotations via reader submissions. Drudge Retort is doing nothing different than what Digg, TechMeme, Mixx and dozens of other sites do, and frankly the fact that they are being linked to should be considered a favor. […]

  15. […] only to instances that go beyond brief references and direct links to our coverage,” said Jim Kennedy, director of strategy for AP. “We get concerned, however, when we feel the use is more reproduction than reference, or […]

  16. Copyright infringement, even with a potentially successful defence of fair use, remains copyright infringement and is thus still subject to the DMCA.

    If you're upset that this renders 'fair use' impotent, complain to those who drafted and enacted the DMCA.

    I think you'll find AP can continue to be a bully and will do so.

    You have a choice:
    1) Be bullied/Acquiesce/Pay up
    2) Pursue fair use in court (it cannot be asserted any other way)
    3) Avoid the bully
    4) Abolish copyright

    • Crosbie: Your make sense and I bet the AP is willing to bet that most people will choose #1, #3 .. #2 and #4 are too painful or expensive for most people to fight

  17. […] with the rest of the Internet – I think the AP has no choice but to protect its writing. After all, they can’t own the actual facts or events on which the news is based. The value their writers add is mainly tied up in the head and lead – […]

  18. […] repercussions of that action were felt far and wide and caused the AP to sorta, kinda back down off their “heavy handed” […]

  19. […] Michael Arrington has been out and about on this over at TechCrunch The stories over the weekend were bad enough – the Associated Press, with a long history of suing over quotations from their articles, went after Drudge Retort for having the audacity to link to their stories along with short quotations via reader submissions. Drudge Retort is doing nothing different than what Digg, TechMeme, Mixx and dozens of other sites do, and frankly the fact that they are being linked to should be considered a favor. […]

  20. Crosbie: Your make sense and I bet the AP is willing to bet that most people will choose #1, #3 .. #2 and #4 are too painful or expensive for most people to fight

  21. […] with Toronto’s Globe and Mail is just one of the chorus of veteran journalists and editors opining that the AP needs to get a clue. Jeff Jarvis of Buzzmachine goes further and says, “For shame, […]

  22. […] with Toronto’s Globe and Mail is just one of the chorus of veteran journalists and editors opining that the AP needs to get a clue. Jeff Jarvis of Buzzmachine goes further and says, “For shame, […]

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