The writer behind the blog has told OUT-LAW.COM that if AP
continues its case it will be taking on the entire blogosphere.
"Linking to news articles with short excerpts is common practice
throughout the web, both on individual blogs and on social news
sites," said Rogers Cadenhead, who is behind blog Drudge Retort.
"If AP intends to fight this one out, it'll be the case of AP v.
Everybody."
Though a spokesman for AP has told The New York Times that the
news wire is rethinking its position Cadenhead said that the
notices have not actually been retracted yet.
The stories have been taken offline and Cadenhead said that the
authors have the right to file counter-claims to AP's, but that
they have not yet done so.
Cadenhead runs Drudge Retort, which is a user-generated content
site where members post excerpts of and links to news stories and
comment on them. The site claims 8,500 members.
AP issued it with seven take down notices under the US's Digital
Millennium Copyright Act (DMCA), six about posted stories and one
about a user's comment.
"I'm in a position where I need to tell the bloggers using the
Retort what AP considers legal and what it considers illegal, but
I'm only being told that everything's illegal – both in terms of
copyright law and 'hot news' misappropriation under New York state
law," said Cadenhead.
"The DMCA compels me to remove those six user blog entries, and
one user comment, on the grounds that they violate AP's copyright.
Even if I dispute AP's interpretation of copyright law, I must
remove the content immediately."
"I have a good faith belief that the page or material listed
below is not authorized by law for use by the individual(s)
associated with the identified page," said AP's letter to Drudge
Retort. "I hereby demand that you act expeditiously to remove or
disable access to the page or material claimed to be
infringing."
The stories contain between 33 and 79 words of the AP stories
concerned and five of the six news stories are topped by headlines
written by the blog user, not the AP headlines.
"I think using an excerpt of one to three sentences from a news
article, when linking to that article, should be considered fair
use," Cadenhead told OUT-LAW.COM.
Fair use in US copyright law allows copyrighted work to be used
in some cases without the permission of copyright holders, cases of
news reporting being one of those exceptions. AP disagrees with
Drudge Retort's reading of the law, according to Cadenhead's
account of a letter he received from it.
"AP considers that the Drudge Retort users' use of AP content
does not fall within the parameters of fair use," said AP's
intellectual property governance co-ordinator Irene Keselman,
according to Cadenhead. "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.""
"AP considers taking the headline and lede of a story without a
proper license to be an infringement of its copyrights, and
additionally constitutes "hot news" misappropriation," she said in
the letter.
Hot news misappropriation is a feature of New York state common
law dating back to cases taken by AP itself against press baron
William Randoph Hearst in 1918 in a dispute over World War I
reports. It says that while facts cannot be copyrighted, a news
agency has a right to protect the essence of its news stories.
AP did not respond directly to OUT-LAW, but it did post a
response to several blogs in response to their coverage of the
issue.
"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," said Jim
Kennedy, director of strategy for AP, in the posts.
"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," he said.
Kennedy told The New York Times that the company's action had
been "heavy handed" and that it would try to come up with
guidelines about what it considers 'fair use' to mean. This,
though, could only ever be guidance. It would still be up to the
courts to decide what 'fair use' means in any disputed case.
In the UK copyright law has a similar set of exclusions to the
US's, which are called fair dealing exceptions. Intellectual
property law expert Iain Connor said that the use of the material
would be unlikely to be against the law in the UK.
"I don't think it would be an infringement in the UK, because in
Section 30 of the Copyright, Designs and Patents Act of 1988 there
is a defence of fair dealing in work for the purpose of criticism
or review or news reporting," said Connor. "You can use the work of
another provided it is accompanied by sufficient acknowledgement,
and as long as you're not breaking an exclusive before the person
who owns the exclusive has had the opportunity to tell the story,
which is not the case here."
The AP's objections listed the number of words common to its
stories and Drudge Retort's, but Connor said that the amount of a
story which is taken is not the most important factor to be
considered.
"In order for there to be an infringement the person has to take
a substantial part of the work, but that is dictated by the quality
of what is taken, not the amount," he said. "But once the defence
of fair dealing is applicable, it doesn't matter how much is
taken."
