AP sends takedown letters to Drudge Retort: Do excerpts and links infringe?

Rogers Cadenhead has long run a site called the Drudge Retort at www.drudge.com. Today he posted the news that the site has been targeted by the Associated Press with DMCA takedown orders. AP is complaining about a bunch of posts on Drudge Retort that contain brief excerpts of longer AP stories and links to those stories on other sites.

According to the AP, this is copyright infringement. (Here’s the text of the complaint.)

If the AP is right, then something like 99.9% of the world’s millions of bloggers are engaged in copyright infringement, simply by excerpting the articles bloggers link to.

Something’s wrong with this picture!

Fair use has always been a sticky area of the law because there are no clear boundaries to what’s acceptable; instead there is a set of principles that get weighed to determine whether the reuse of copyrighted material is considered to fall under fair use.

One thing that I always assumed was clear fair use, though, was short excerpts of longer articles, properly credited and linked to, for the purpose of commentary. This meets several of the fair use criteria (amount used, transformation of the work, effect of use on work’s market value) head on.

Of course I Am Not a Lawyer, but I dealt with this sort of thing for years at Salon. (We took considerable umbrage at the way users at certain sites reposted entire Salon articles which they wanted to read and critique. Because they disagreed with us politically, they wanted to deny us the ad revenue we’d get if they read the articles on our site. This was not fair use. But they could have excerpted and linked easily enough!)

It looks to me like Cadenhead is being targeted for some other reason, with the infringement complaint as some sort of smokescreen. Either that, or the AP has decided it wants to blow up the blogosphere. Since bloggers are some of the most avid consumers of news, this sue-your-customers strategy is likely to be about as effective as the RIAA’s was.

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  1. vince

    Does that mean a portal like techmeme.com is also making copyright infringement? AFAIK techmeme publishes excerpts from the source for all the top stories, though they do give proper attribution for each headline. Google news also does the same. Could u throw some light on what is legal and what is not.

  2. Anon

    I didn’t actually ready your article, but I did read the link title and blurb on techmeme.

  3. I second vince. This is a scary move by AP. I am not sure what they are thinking, but maybe AP is trying to set things on the web the way they want it.

    Did AP just got new mgmt? I am pretty sure this won’t last.

  4. Dave Bell

    I gather that the news wire services have similar styles, so that a subcriber can easily edit a story to fit into available space. Essentially, a simple version of the story is given in the first paragraph, followed by a series of increasingly expanded and more detailed versions.

    So even a very short except may be complete enough not to be fair use.

    The problem is that lawyers often seemed scared of explaining themselves, lest they ruin a later court case. They don’t want to make it easy for your lawyers to wreck their case. They’re scared of a conversation, but conversation is often the key to a blog.

    And then you have the whole standard Internet can of worms about the application of local laws. “Fair use” doesn’t even exist where I type.


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