When breaking news breaks copyright

Community blog Drudge Retort receives DMCA notices from the Associated Press for links, quotes.

by Ethan Ackerman

Rogers Cadenhead is a blogger. A prolific one in fact, with a personal blog and the role of editorial director at the commenter-driven political commentary blog Drudge Retort. The latter blog has recently drawn the ire (read: multiple take-down notices) of the Associated Press‘ legal department for linking and quoting AP content.

Multiple DMCA notices happen daily, and many make questionable legal assertions, but these, well, they’re interesting….

UPDATE 6/17

The New York Times covers the Associate Press’ ‘partial apology but still take-down request’ in more detail here, as does Scott Rosenberg. Kudos to the NYT for acknowledging it is an owner of the AP. For follow-up reporting, Mr. Rosenberg’s blog definitely aggregates coverage better than the NYT. In short, the AP still considers the Drudge Retort’s posts to be infringing and demands they be removed, but was sorry it came across badly in saying so and won’t issue any more blog DMCA notices (other than this one) until it has released guidelines on acceptable quoting and linking.

Guidelines, we don’t need no stinkin’ guidelines.

The notion of quotation guidelines seems to be a non-starter for many bloggers. As (former attorney) Michael Arrington points out, the real guidelines in this situation are the fair use provisions of the Copyright Act, and guidelines can’t shrink or expand those. Absent some type of contractual agreement with the AP, no one would be constrained by the guidelines in any way.

That said, the notion of guidelines are at least legally interesting, and puzzling. Regardless of any fair use considerations, to the extent any AP ‘guidelines’ purported to allow some linking and quoting of AP stories, they would function as an express license to bloggers. Express licenses are an entirely different legal beast than a fair use defense – and they aren’t exclusive. For one thing, any sued blogger could probably get a judicial resolution of a suit a lot quicker – whether an alleged use is within the scope of a license can be determined as a matter of law, possibly on the pleadings or at least in a motion for summary judgement. A fair use defense often requires further discovery and motions proceedings.

Unless I’m missing something, it would seem like AP offering guidelines effectively gives some bloggers a ‘safe harbor’ but doesn’t touch those who exercise the full scope of their fair use rights.

The fallout – The Internet sees censorship as damage and routes around it.

That Internet truism looks to be applicable to AP’s takedown actions, with fairly widespread negative blogging responses and boycott promises from quite a few prominent blogs.

[Author’s comment. Normally I’d be sceptical of anything with the word ‘web-based’ and ‘boycott,’ but in this case, authors are choosing not to cite to AP – an almost effortless choice. It’s not like someone foregoing gasoline. This may be a classic example of the Colbert response to IP over-enforcement.]

It’s just a discontinuity in the path of money.

As Mike Markson points out, at the end of the day, this conflict boils down to a weakness in the business plan and structure of the Associated Press. Its business structure makes it adverse to its customers’ customers. AP’s licensees see the traffic and get the linking and page-viewing, exactly what they want, but AP gets nothing in this. Perhaps AP could restructure its business model to better benefit AP with one central content site, or this could be one of many examples of a shift in relative power between parties.

The law in all of this.

As a starter, the degree to which headlines and factual news is even protected by copyright is, well, thin to nothing. Unfortunately, most of the blog coverage misses that point, running to the more nebulous (but still important and applicable) fair use defense. David Aradia at Harvard’s Citizen Media Law Project does an excellent job at laying out the fair use aspects. He also details the legally fuzzy issue of “hot news misappropriation,” a pseudo-copyright issue that may or may not have a place in state law or copyright law. Read his excellent coverage there of why, if it even exists and isn’t preempted, ‘misappropriation’ doesn’t matter.

Is there copyright here? Is there relevant law here? News events (and the facts that make them up) aren’t protected under copyright law. Neither are any other factual compilations that don’t have the requisite minimum creative writing to separate the creativity from the underlying facts. That almost certainly means news headlines aren’t protected – they’re too intertwined with the facts they convey. I say almost certainly because there’s nothing but hints to that effect in copyright cases – no recent rulings squarely address the issue. The holy grail for many copyright scholars on this exact issue could have been Agence France-Presse v. Google. Unfortunately for copyright law clarity, but probably fortunately for all parties involved, that case settled in 2007. So, while counsel for Google may have served their client well, they deprived copyright scholars from having something to write about.

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