AP affair: prelude to a longer conflict?

So the AP has closed the book on its dispute with the Drudge Retort. The matter may be “closed” — but the book never got written!

Apparently this means the company will not go after Rogers Cadenhead further, and that is a relief to him. The rest of us remain somewhat in the dark. It’s hard to read all the signals but to the extent that we don’t have clear signals it means that the AP itself, or some portion of or faction within the company, still reserves the right to send DMCA takedown notices for brief excerpts and links to its material.

What this means, I’m afraid, is that the AP/Drudge Retort matter has not been the resolution of anything at all, and that we are likely to see a larger and longer conflict unfold, between the AP’s efforts to nail down its rights to smaller and smaller bits of its content and the desire of bloggers (and their readers) to quote headlines and brief excerpts with links, which is the core of what they do.

The AP has some sort of guidelines that it will promulgate — we don’t know yet what they are. (Cadenhead’s post indicates that they are unlikely to please the blogosphere unless they get radically modified before their release:

If AP’s guidelines end up like the ones they shared with me, we’re headed for a Napster-style battle on the issue of fair use.

I’m getting ahead of the action here, but it doesn’t take a genius to come up with a likely crystal-balling of how this will play out: Bloggers will look at these guidelines, and at least some will find them objectionable, and set out to flout them, picking a fight. Then we’ll get a drawn-out legal dispute that will further define the extent and limit of fair use on the web.

A good lawyer would probably tell you that, in this sort of situation, you literally want to pick your battle carefully: the specifics of the particular case that ends up being the test here will matter a lot. Specifics like, How much was quoted? How much further debate/discussion takes place on the site posting the excerpt (so-called “transformative” reuse)? What’s the nature of the site itself, and is it a business?

Fair use is complicated. I spent years learning about it at Salon, and still find it a tricky realm. I’d urge bloggers to consider that they take a little time this weekend and, instead of flaming the AP — which at this point has most likely already circled its wagons and told itself, “Those bloggers are crazy” — study up on the details of fair use law. That way, whoever does wind up as a test case can make the best of the fight.