AP battle over, copyright war still on

The Associated Press has apparently decided to fold its tent and exit the blogosphere copyright battlefield, at least for now. According to a statement by Rogers Cadenhead, the newswire and he have reached a settlement of some kind, in which the AP has agreed to not pursue further action against him over excerpts from AP stories posted to his site The Drudge Retort. A statement by the Associated Press said:

“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.”

As Rogers notes in his post, however, the AP declaring the matter closed does nothing to resolve the larger conflict between how AP interprets fair use and how thousands of people are sharing news on the web (a conflict that — if it were to go to court — the Electronic Frontier Foundation and others say AP would likely lose). I am inclined to agree with Salon founder Scott Rosenberg, who says:

“What this means, I’m afraid, is that the AP/Drudge Retort matter has not been the resolution of anything at all, and that we are likely to see a larger and longer conflict unfold, between the AP’s efforts to nail down its rights to smaller and smaller bits of its content and the desire of bloggers (and their readers) to quote headlines and brief excerpts.”

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AP and the Media Bloggers Assoc.

Is nothing ever simple in the blogosphere? Apparently not. I thought the Associated Press copyright-infringement debacle involving Rogers Cadenhead and his site The Drudge Retort was just a ridiculous move by a short-sighted traditional media organization, trying to somehow shove the social-media genie back into the bottle. Don’t get me wrong — it’s still all of that. But now, it’s also turned into a murky tale involving conflicts of interest (or allegations of same) and the somewhat tangled history of something called the Media Bloggers Association.

The conflicted part comes from a post by Mike Arrington at TechCrunch, in which he notes that Saul Hansell — blogger and technology editor at the New York Times — has written three posts about the brouhaha, each of which seems to be arguing that bloggers have gotten it all wrong, and the latest of which says that Digg co-founder Jay Adelson supports the Associated Press, which turns out to be… well, wrong. Saul also says that he finds it significant that:

“Mr. Adelson, a leader in the Web 2.0 world, takes a view that is a bit different than the content-must-be-free orthodoxy that has been thrown around so violently.”

I for one don’t recall any “content must be free” orthodoxy being thrown around, violently or otherwise, although it’s possible I may have missed something. I do recall a lot of people writing about the chipping away at the concept of ‘fair use’ that the AP’s case against Drudge Retort represents, which I think is something quite different. In any case, Mr. Hansell was also instrumental in another part of the controversy, which started with a somewhat huffy post by Media Bloggers Association founder Robert Cox, who says he got involved in the Cadenhead affair after Rogers asked him to help (on the advice of Culture Kitchen).

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Why Saul Hansell is wrong on AP

In most cases, I’m all for a dose of rationality and common sense amid the short-attention-span Drama 2.0 that makes up much of the blogosphere. That’s exactly what New York Times blogger Saul Hansell is selling in his latest post at the Bits blog, in which he argues that the Associated Press copyright kerfuffle is just a silly misunderstanding. In effect, Hansell argues that Mike Arrington and Jeff Jarvis should quit whining and work with the AP to figure out how much of their newswire copy bloggers can reference without getting a “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. Arrington and Mr. Jarvis suggest.”

Does it really though? I don’t want to be accused of succumbing to Godwin’s Law, but I would argue that a dialogue with the AP has about as much chance of being “constructive” as Chamberlain’s discussions with Hitler over the fate of eastern Europe. Just as that dialogue resulted in the loss of much of Czechoslovakia, I think a discussion with AP about how much bloggers can quote and under what circumstances is a mistake — and as Mike Masnick of Techdirt notes in a comment on Saul’s post, the AP hasn’t exactly shown itself to be open to a discussion. It seems to want to dictate terms. Saul says in his post:

“More important, the A.P. could well offer bloggers a safe harbor to use its content under certain circumstances without asserting a claim that every use beyond that line is copyright infringement.”

But that’s kind of the point: the AP doesn’t have to offer a “safe harbor” to bloggers or other media sites under certain circumstances. The fair use exemption under U.S. copyright law already does that, whether the newswire likes it or not (and clearly it doesn’t). If it wants to get someone to say whether a few sentences excerpted on a blog qualifies or not, then it can go to court and try to get a judge to do so. But sitting down and trying to negotiate some kind of blanket pass for something that is already permitted under law seems like a mug’s game.

As I’ve said before — both in my posts and in the back-and-forth I had with Cyndy Aleo-Carreira of Profy on her post — I have no issue with the AP sending C&D notices to sites that re-publish their content holus bolus, or fail to give attribution, or are in competition with the news service and therefore threaten their business model. But I don’t think The Drudge Retort falls into any of those categories, and I agree with Techmeme’s Gabe Rivera that AP’s attempt to extend its reach to that and other blogs or social media sites is a dangerous move.

Update:

Dan Lewis of Wikia and ArmchairGM has a guest post at Centernetworks in which he argues that AP’s case is better than some might allow, and David Ardia (director of Harvard’s Citizen Media project) has a counter-argument at MediaShift. Meanwhile, the Associated Press has a web form up where you can click to pay $12.50 for the right to quote five words from an AP story. Yes, that’s right — five words. I am not making this up.

Associated Press: In a hole, still digging

Not content to just distribute DMCA “notice and takedown” letters to unsuspecting websites like The Drudge Retort — a community 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 websites can quote. No doubt the newswire thinks this is being helpful, but Mike Arrington has taken it as an all-out declaration of war, and he is taking no prisoners. No more linking to or referencing any more AP stories, says TechCrunch. They don’t exist, says Mike.

“The A.P. doesn’t get to make its own rules around how its content is used, if those rules are stricter than the law allows. So even thought they say they are making these new guidelines in the spirit of cooperation, it’s clear that, like the RIAA and MPAA, they are trying to claw their way to a set of property rights that don’t exist today and that they are not legally entitled to.”

In the New York Times piece about this move, AP vice-president Jim Kennedy — the same one whose statement was pasted into the comment section of multiple blog posts on the Drudge Retort story, including mine — says the newswire has backed off its original approach after criticism, and admits that it was “heavy-handed.” The language he uses is one of reconciliation and compromise:

“We don’t want to cast a pall over the blogosphere by being heavy-handed, so we have to figure out a better and more positive way to do this,” Mr. Kennedy said.

And yet, AP hasn’t retracted its notice to Drudge Retort or its demands that the site remove excerpts, which in some cases amount to as little as a few sentences. According to the NYT story, the news service “still believes that it is more appropriate for blogs to use short summaries of A.P. articles rather than direct quotations, even short ones.” In other words, the Associated Press would rather that you don’t use any excerpts whatsoever from an AP story, but instead rewrite a brief summary. As Scott Rosenberg of Salon correctly notes, this is absurd — fair use principles should apply to short excerpts, especially if they link to the original source. Trying to ban any excerpting at all is ridiculous.

Kennedy tells the Times that the AP is “not trying to sue bloggers. That would be the rough equivalent of suing grandma and the kids for stealing music. That is not what we are trying to do.” And yet, that is very clearly the road that the newswire is going down — and it is a fool’s game, as the record industry has discovered in spades. If nothing else, it will help to demonstrate just how irrelevant the AP is. It is trying to make its content more valuable, but instead it is making it less so.

Update:

The boycott is a lot wider than just Mike Arrington and TechCrunch — a grassroots anti-AP campaign has swung into action, and Richard Kastelein of Atlantic Free Press has set up a website called unassociatedpress.net with a petition people can sign, as well as a number of “boycott Associated Press” badges for websites and blogs. Jeff Jarvis says that AP has “declared war” on bloggers.

Someone please buy AP a clue

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:

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