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.

I’m happy to see the AP vs. Drudge Retort story picking up steam. It’s fun watching the way this issue cuts across so many divisions in the blogosphere. It’s a sort of reverse wedge!

We’ve got the paleolithic types at Little Green Footballs calling the AP on its “caveman approach” of intimidating the liberal-minded Drudge Retort site — and agreeing with lions of the Democratic ‘sphere! We’ve got the deans of the tech blogosphere joining media bloggers and political bloggers.

Meanwhile, Patrick Nielsen Hayden alerts us to the wacky form at the AP site that lets you pay AP $12.50 each time you want to quote 5 to 25 words from a story! Gee, thanks! As one commenter at Hayden’s site joked, “Do we get to choose which five words?”

Mark Glaser is good on this controversy, and I agree with him that the boycott calls are over the top. (He’s also got a link to a great discussion of the legal issues from David Ardia.) I can’t see a boycott making a huge difference. But I can see a lot of bloggers just avoiding the hassle of worrying about the AP’s lawyers and finding some other non-AP accounts to link to. AP will ultimately be the loser, as web writers and readers fill in the space AP leaves from other sources. There might be some gaps at first, but they’d get filled in the long run.

That sound in the distance is timbers cracking in the old business-model structure. The AP is a strange beast, dependent on its members, and its members are hurting, too. I’m not surprised that it’s lashing out. But I don’t think it’s helping its own future by insisting that people pay to quote headlines and short excerpts.

In the meantime, the biggest priority here for those of us who care about the long-term health of the web is that we don’t wind up with a terrible legal precedent that defines fair use in some newly constricted way. The people who are calling the AP out on this aren’t crazed piratical scofflaws; they’re journalists and authors, just as I am, people who pay the rent based on the value of the content they produce. But you need some assurance that you can quote brief excerpts or you can’t write non-fiction at all.

(I mean, if I had to pay for every 25-word excerpt of a blog that I’ll be quoting in my next book, I wouldn’t even bother trying to write it…)

UPDATE: On the Times “Bits” blog, Saul Hansell complains that hotheaded bloggers calling for a boycott aren’t helping things; he’d rather see a dialogue in which bloggers might get guidance from the AP about what’s acceptable. Matthew Ingram responds that such a dialogue is unlikely to be fruitful and that bloggers have the law on their side here. This is getting interesting…

Confusing NY Times piece up tonight first suggests that the AP has “retreated” in an “about face” after its hamhanded takedown notices sent to Rogers Cadenhead and his Drudge Retort.

But then near the bottom of the piece we learn that the organization is still demanding that Cadenhead delete the posts. On the one hand, AP execs are saying that they’ve decided to “suspend their efforts” to intimidate bloggers, yet on the other hand they are saying that “the organization has not withdrawn its request that Drudge Retort remove the seven items.”

Maybe this is a face-saving walk-back. But as long as the demand is still being made, the possibility of a really destructive precedent getting set also remains.

The really puzzling thing here is this:

“Cutting and pasting a lot of content into a blog is not what we want to see,” he said. “It is more consistent with the spirit of the Internet to link to content so people can read the whole thing in context.”

What a bizarre notion! We are apparently going to serve our readers better by paraphrasing and linking than by quoting and linking (as I just did). This strains credulity. The “spirit of the Internet” has always been about linking and excerpting. Actually, the “spirit of the Internet” is probably even more about wholesale copying. But that spirit has always had to make tradeoffs with businesses like the AP. I hope the company’s leaders continue to step back from the absurd brink they’ve conjured for themselves.

(Simon Owens posted a brief interview with Cadenhead on this controversy but it doesn’t shed further light on that question.)

I just received email that I assume is genuine with this statement from the AP:

AP wants to fill in some facts and perspective on its recent actions with the Drudge Retort, and also reassure those in the blogosphere about AP’s view of these situations. Yes, indeed, we are trying to protect our intellectual property online, as most news and content creators are around the world. But our interests in that regard extend only to instances that go beyond brief references and direct links to our coverage.

The Associated Press encourages the engagement of bloggers — large and small — in the news conversation of the day. Some of the largest blogs are licensed to display AP stories in full on a regular basis. We genuinely value and encourage referring links to our coverage, and even offer RSS feeds from www.ap.org, as do many of our licensed customers.

We get concerned, however, when we feel the use is more reproduction than reference, or when others are encouraged to cut and paste. That’s not good for original content creators; nor is it consistent with the link-based culture of the Internet that bloggers have cultivated so well.

In this particular case, we have had direct and helpful communication with the site in question, focusing only on these issues.

So, let’s be clear: Bloggers are an indispensable part of the new ecosystem, but Jeff Jarvis’ call for widespread reproduction of wholesale stories is out of synch with the environment he himself helped develop. There are many ways to inspire conversation about the news without misappropriating the content of original creators, whether they are the AP or fellow bloggers.

Jim Kennedy
VP and Director of Strategy for AP

Let’s unpack this just a bit: AP is saying it’s OK to link, but that they “get concerned” over use that is “more reproduction than reference or when others are encouraged to cut and paste.”

But what I saw on Drudge Retort was brief excerpts of much longer stories. That’s the issue here. (Jeff Jarvis’s call for protest reposts is really a side issue — it gives AP a cleaner-cut case to object to than the main dispute.)

Brief excerpts should be considered fair use. I imagine AP wants to draw a line in the sand and discourage excerpting so that it doesn’t have to confront the tough problem of a “slippery slope” of ever-lengthening excerpts that become, de facto, full-text republication.

But unfortunately fair use law doesn’t draw such a line. It doesn’t say, “75 words is OK, 100 words isn’t.” And the AP will set a terrible precedent for the Web if it manages to intimidate people from doing anything but linking, and effectively outlaws the reasonable use of brief excerpts.

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.