AP vs. Drudge Retort: one tough question still unanswered

Some day this blog will return to coverage of other stuff, but in the meantime, the AP/Drudge Retort story continues to percolate.

Today Robert Cox of the Media Bloggers Association posted his account of his role in trying to represent Rogers Cadenhead and the Drudge Retort in their conflict with the AP. It’s important reading for anyone following this matter.

I wasn’t surprised to learn of Cox’s involvement in the story. I had happened to be emailing Rogers Cadenhead on another matter entirely last week when he informed me that he’d just received the takedown letters from the AP and was looking for help. I was one of no doubt many people who pointed him toward Cox (as well as the EFF). I’d met Cox briefly years ago and understood that his group existed precisely for this sort of situation. Here’s Cadenhead’s explanation of how he and the MBA got connected.

Cox’s take is sober and conciliatory. He points out that the takedown letters didn’t come out of the blue; they were the latest episode in a longer conflict between Drudge Retort and AP, in which Cadenhead had already taken down some posts that were full-text reproductions of whole AP stories. That’s relevant information, to a point. Also, as far as I can see, Cox does not deserve the strange drubbing he has taken (at the hands of prominent blogs like Gawker and Daily Kos) for trying to help defend Cadenhead. (The New York Times didn’t help him by making it sound like he was somehow claiming to represent the interests of all bloggers.) Meanwhile, Dave Winer has reminded us that the AP is a nonprofit organization that has sometimes been openminded about how its stuff gets used and reused online.

That’s all well and good. But at the end of it all, we are still left with one big question, which is: whatever its history with Cadenhead, why does the AP feel it has the right to issue DMCA takedown letters for brief excerpts, headlines or links? These letters, as most editors know and Cox explains, require an immediate response: legally, you have to take stuff down first, and ask questions (or go to court) later. So they’re sort of blunt, peremptory instruments — more like ultimatums than conversation-starters.

You can have all the good will towards AP in the world, and know that it’s a nonprofit, and respect a lot of the work its employees do, and so forth, yet still want to know: when did the AP decide that fair use does not include brief excerpts and links? Or if it does — Winer says an AP exec told him the excerpts Winer is running on his new Newsjunk site are not a problem — then what’s with the letters to Drudge Retort? Or does it vary from case to case? Does AP get to decide which headlines and excerpts are OK and which aren’t? Are headlines and excerpts not OK if you’re a nobody blogger with no lawyers, but suddenly more OK if you can mobilize a crowd of online supporters and get someone like Cox to help you out?

There has indeed been a lot of smoke and noise around this issue. But there’s also an important question at heart that we still haven’t really heard answered by the AP. I hope Cadenhead and Cox get a response on it.