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.

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  1. I just twittered to Jay and you that I am sure there must be a battle of the IP philosophies going on internally at AP with Kasselman in one corner trying to extend the old licensing structure to the blogosphere and Kennedy in the other corner fighting against it.

    There’s too much double speak happening from their side of the story for things to be just about Rogers having headlines and some text on their site. He is obviously a case study for them internally.

    If you don’t know, The Drudge Retort’s traffic is nothing to sneeze about at about 250K pageviews a week (am lowballing). They’ve been around for a long time as well so their page rank is not shabby either. YET it is not a traditional “political” site and it’s actually thumbed by most “A-listers” with less traffic than them.

    So it isn’t as high profile as the Big Orange Satan but it still has way more traffic than the conventional community site.

    Which is why I am sure they thought they could go after it under the radar.



    Liza Sabater, Publisher

  2. Scott Rosenberg

    Right, Liza — I don’t doubt there are some very interesting arguments taking place inside AP. In the meantime, seems helpful for those of us on the outside to keep asking questions — firmly not rudely.

  3. The Media Bloggers Association is not some phony grass-roots organization. They’ve helped bloggers engaged in legal disputes, which is how they were recommended to me. They’ve lived up to that reputation.

    I can understand the natural rebellion to authority in blogging, but the MBA hasn’t done anything here to inflate its importance. They were involved before this disagreement got any press.

    It’s a crying shame that bloggers don’t recognize the value of a group that can advocate our interests in libel and IP battles and help bloggers navigate the murky and difficult subject of media law. Millions of people blog. C&Ds, DMCAs and lawsuits against bloggers are increasingly common.

  4. Scott – regarding “we still haven’t really heard answered by the AP” – this isn’t really a hard question to answer, if one has some knowledge of the copyright battles and the limits of fair use. The problem is you’re not going to get an answer from the A-listers of the bogosphere, since all the attention is in the other direction :-( .

  5. Incidentally, Drudge Retort was not the first noncommercial / public interest blog to get a C&D from AP this year. Brian Ledbetter posted to the TechCrunch comments that he got one in February for his re-use of AP photos, and that he wrote EFF and only got a form letter in response. He took down every picture and didn’t fight it.

    He was not aware of the MBA at the time. His plight– well-circulated in the conservative blogosphere– got up to Instapundit, who didn’t give it a whole lot of attention. I suppose with a little more effort it could have gotten over to Volokh and then transsected into the liberal blogosphere.

  6. Jon, Drudge Retort is a commercial entity. It makes a profit. Monies donated support the site, and then Rogers pockets the rest. That is, more or less, a commercial enterprise.

  7. Greg Costikyan, try this on for size: just because you read it in Making Light doesn’t make it true. If you can manage that, we’ll then progress on to Boing Boing and Techcruch.

    We don’t have the facts to determine what is “true” in any of this. We don’t have the AP’s detailed written guidelines in order to determine how onerous a burden these will be on weblogging. When we do, we can then make a choice: to challenge such guidelines, and take the consequences; or follow the guidelines because they don’t impact on how we write.

    I, for one, will welcome these guidelines because they’ll clarify the AP’s view of copyright and fair use, rather than my having to try to guess what the AP’s view is from Rogers’ writing of his interpretation of what the AP is telling him.

    As for the Bloggers Media Association, it doesn’t matter if it was this organization or a grouping of Arrington, Jarvis, Nielsen Hayden, and Ingram–no one organization represents webloggers, but if any want to participate with the AP, fine, have fun, send a postcard.

    No one, the AP or otherwise, seriously believes _any_ of these people represent all webloggers. If you don’t want to be represented by the MBA, cool, but I certainly wouldn’t want to represented by Arrington, Jarvis, et al.

    In the end it will still be the individual writer making their own choice. Except maybe we’ll be able to make better informed, rather than accidental, choices.


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