At the Personal Democracy Forum last week, which I did not attend, Jay Rosen delivered a talk in which he described the turmoil in today’s newsrooms as a phenomenon of tribal migration from the old print world to the Web:

The professional news tribe is in the midst of a great survival drama. It has over the last few years begun to realize that it cannot live any more on the ground it settled so successfully as the industrial purveyors of one-to-many, consensus-is-ours news. The land that newsroom people have been living on — also called their business model — no long supports their best work. So they have come to a reluctant point of realization: that to continue on, to keep the professional press going, the news tribe will have to migrate across the digital divide and re-settle itself on terra nova, new ground. Or as we sometimes call it, a new platform….And like reluctant migrants everywhere, the people in the news tribe have to decide what to take with them, when to leave, where to land.

This astute piece reminded me of the creative but premature choice of imagery John Markoff used back in 1995 when he wrote about the launch of Salon as a harbinger of “tribes of journalists” departing newsrooms for the Web. Today, Rosen suggests, this diaspora is finally beginning in earnest.

I think that his analysis is accurate as far as it goes, and offers a useful metaphor, but that it lets the “tribe” off too easily, in two ways.

First, there is the not insignificant point that Brad DeLong brings up — that the tribe is not composed of blameless victims:

the press corps’s flaws are much deeper than that–it’s not just that it doesn’t understand the new ground to which it is migrating, it’s that it did a lousy job on its own ground as well.

There’s no question in my mind that the woes of the journalism profession today have been at least partially self-inflicted. At the very historical moment that the news pros faced relentless new scrutiny from a vast army of dedicated amateur watchdogs and expert critics, they offered up a relentless sequence of missteps and disasters. Some were failures of professionalism, from the Jayson Blair meltdown to the Dan Rather screwup. But the biggest — the absence of a stiff media challenge to the Bush administration’s Iraq war misinformation campaign — was a failure of civic responsibility. With that failure, the professionals forfeited their claim to special privilege or unique public role as challengers of official wrongdoing and ferreters of truth. The democracy still needs these roles filled, of course. But after the Iraq bungle, the professional journalists’ claim to own them exclusively became much harder to accept.

The other area in which Rosen’s piece lets journalism’s incumbents off a little easy is in its picture of the change in the business landscape as a sort of vast, impersonal inevitability. Like the Irish Potato Famine or the pogroms, the digital age is just there, a force of history that is uprooting the tribe for reasons beyond its control. But in fact the tribe bears some responsibility here — at least its elders and leaders do. Perhaps the average newsroom grunt was in the dark, but top editors have been in a position for at least two decades to see the disruption ahead. Any of them could have sat down with their corporate bosses during that time and said, “This business is doomed unless we take some of the 20-25 percent profit margin you are enjoying and reinvest it in a totally different direction that won’t pay off for a long time.”

Now, I’m not naive enough to think that such advice would have been taken. The public corporations that own most newspapers today (and the private ones, too, for that matter) like their short-term profits. But a newsroom leader ought at least to have been able to frame this choice for the owners. Did that happen anywhere? If so, it happened so quietly it made no difference.

The incumbents of the journalism field are no more likely to risk giving up their profits and their privileges of place than those in any other field. Sunday’s NY Times Business section has an essay by Randall Stross arguing that Microsoft ought to give up on the new Windows 7 and rewrite its operating system from scratch. This would be exciting and bold and could pay long-term dividends, but would entail massive short-term disruption and revenue loss. It is no more likely to happen than the Times deciding tomorrow to shut down its presses and move all its news delivery online.

Migration is certainly still an option for many individual journalists. For institutions, I think the ships may have already sailed.

The Beltway-Blog Battle (James Poniewozik, Time, this week):

Maybe we’ll also stop arbitrarily dividing “real” from “amateur” journalists and simply distinguish good reporting from bad, informed opinion from hot air, information from stenography. Maybe we’ll remember this election as the one when we stopped talking about “the old media” and “the new media” and, simply, met the press.

I posted on Blogology in July 2002:

Bloggers can be journalists any time they practice journalism by actually trying to find out the truth about a story. A journalist can be a blogger by installing some blogging software and beginning to post. These words should be labels for activities, not badges of tribal fealty.

Another good quote from Poniewozik:

“if 3 million people read Drudge and 65,000 read the New Republic, which is mainstream?”

And this one raises my eyebrow a bit:

Russert was one of the last giants of old-school journalism…It’s hard to imagine a future Russert with that kind of singular authority, as the power to set the news agenda moves from insiders to outsiders.

They said the same thing about Cronkite when he retired, of course.

Robert Cox, the Media Bloggers Association guy who represented Cadenhead in this matter, has a lengthy post about what happened this week. Go read it. I wasn’t there but I’ve dealt with lots of similar situations as an editor and this all sounds pretty believable. Congrats to Cox for doing what good lawyers do in situations like this: do your best to achieve your client’s goals but also do your best to keep everyone out of court.

Now here’s the crux of what’s at stake. The sticking point for AP seems to be their belief that a headline-and-first-paragraph excerpt is not covered by fair use:

AP’s argument has been that a large percentage of the value of what they deliver is carefully packaged in that content and so the publishing of that information without permission was a copyright violation.

Here is AP’s fear: if they say that doing this once is OK, then, well, doing it twice is probably OK, and you’re rolling down a slippery slope to their nightmare, which is someone creating a whole site based on a reposted feed of AP’s heds and lead paragraphs.

At what number, then, does fair use turn into infringement? Any answer’s going to be arbitrary. The AP lawyers’ suggestion, then, I imagine, is: set the allowable number to “zero” and you don’t have a problem.

The trouble is that fair use law does not, apparently by intention, draw a simple line. It sets up a bunch of criteria that you have to weigh. And so the nightmare reposted-feed site is almost certainly not a fair use. A Digg home page with lots of AP stories? Well, on the one hand Digg is a business that conceivably is taking business value from AP; on the other hand, Digg users rate and discuss stories, so they’re adding them. And AP accounts for only a little bit of Digg’s total volume of stories.

So there are complex, messy issues here. We on the Web can sit back and say, “AP doesn’t get it! They should love us for linking to them!” But AP has what economists call an “incumbent business model.” They have a way of obtaining revenue that they feel is threatened. That they will try to protect it is simply a given. (That AP is technically a cooperative owned by its members adds yet another level of difficulty to the conflict. It probably makes it harder for AP to take any but the most conservative course, since a riskier move — “Let’s bet on the power of links to make our content more valuable!” — would require a broader consensus from a group of already-embattled news executives.)

This story is going to keep unfolding in unpredictable ways. What’s important to me is that, when the dust settles, Joe Random Blogger doesn’t have to worry about the AP lawyers sending him takedown letters because he wanted to post about the day’s news.

UPDATE: Funny to see AP’s own story on this topic linked to from Romenesko with the following text: “AP vs. blogger: resolved.” Gee, that was easy…!

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.

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.