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The Drudge Retort homepage  (Source: Drudge Retort)
Blogger remains defiant against AP, explores legal options

The Digital Millennium Copyright Act (DMCA) provided a valuable tool for copyright owners such as artists and writers to defend their property online.  However, in the ever evolving online community, the DMCA notices, as they are commonly known, are being used more and more often, at times threatening seemingly legitimate sites.

Some argue that the DMCA powers are being used to infringe upon users' online freedoms -- and frequently.  The latest and perhaps most thought provoking DMCA battle is building between the Associate Press (AP) and The Drudge Retort, a social news/blog owned by Rogers Cadenhead, over the reposting of AP article snippets.

Interestingly, the AP is attacking both the owner for his news posts that occasionally contain small excerpts of AP text linked to the original story, and his users who similarly post snippets from various web stories on the internet in the contents.  In both cases, the AP says this makes these pages in question DMCA takedown fodder. 

Pursuit of action against the first alleged type of offense -- site-run reprints -- could threaten many news distribution sites such as Digg, Reddit, and Mixx, which bring news to millions of users a day.  The second purported illegal offense -- users reposting comments is even more far-reaching as users on major news sites frequently have users post snippets from AP articles.

The second allegation in particular is raising a provocative question -- should commenters' actions result in punishment of a site?  If so, this would mean news sites must scour every user post and try to determine if it contained copyrighted content.  While The Drudge Retort is a relatively small fish, the questions raised by the AP's attack are salient to most of the online industry, from news sites, to the multitude of forums that see similar posts.

While it’s possible that major outlets like AP will only target minor, relatively weak targets like The Drudge Retort, some fear that they may begin to target multiple sites, similar to the RIAA's campaign against filesharers.  In the AP lawyers' letter to Cadenhead, they state their belief that "The Drudge Retort users' use of AP content does not fall within the parameters of fair use."

They continue, "AP considers taking the headline and lead of a story without a proper license to be an infringement of its copyrights, and additionally constitutes 'hot news' misappropriation."

Seven takedown notices were filed in total against the site. 

The AP is a wire service, both online and offline which writes news stories that are reprinted for heavy fees by member outlets.  The service does not have its own "inbound links" or "search-juice", contrary a misconception held by some bloggers.  Only its members do, which is why they are willing to pay a premium for it.  The AP's stance, while a bit draconian does make sense from one perspective -- if writers could get the content for free, why would they pay AP so much for it?

The attack on the site is part of a growing campaign of legal actions from the AP.  In October they targeted the news site Moreover owned by Verisign, which has similar type of service, but in its case charges users for it and a variety of other content.  However the Moreover case was slightly more blatant as the site was allegedly reposting entire articles without paying.

The AP debate highlights the questions surrounding the rather ambiguous legal concept of "fair use" which is decided on a case by case basis on many determinates.  Among these are whether the use is part of a commercial effort or if it’s for nonprofit.  Other factors include the nature of the work and the size of the excerpted text in relation to the size of the full original text.  Also considered is the effect on the owner of the copyright.

While Moreover is obviously violating fair use by the above definition, it’s harder to tell with The Drudge Retort.  Its owner obviously sees his site and its commenters' use as fair use, while the AP disagrees. 

While the AP has yet to wage full scale online war to similar occurrences which litter the web and online news, this latest case illustrates a more aggressive shift on its stance on fair use.  The ramifications of the case and those that follow may be extremely significant to the future of the online world.

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Spells DOOM
By achintya on 6/16/2008 6:36:44 AM , Rating: 5
This spells doom for many such websites and blogs.
Lets take the example of Wikipedia, which uses information gathered by users and uses citations from various websites to verify such information.
This way even Google could come under the scanner as it too Posts links with a small snippet from the website content. Most news aggregation sites are at fault too then. How can the free nature of the Internet survive? Information sharing becomes completely illegal thus, ripping the very fabric of the Internet.

RE: Spells DOOM
By amanojaku on 6/16/2008 6:54:36 AM , Rating: 2
Lets take the example of Wikipedia, which uses information gathered by users and uses citations from various websites to verify such information.

I agree. DailyTech cites information from other sites regularly, and in my experience always posts a link to the original source. If the "Drudge Retort" gets burned half the Internet will go up in flames soon after.

Worse, user comments are also a target? Say what you want about the content posted by article writers, but don't make them responsible for the content of dozens or hundreds of unaffiliated comments. You'll be making site owners vulnerable to liars and cheats looking to sue!

RE: Spells DOOM
By SunAngel on 6/16/08, Rating: -1
RE: Spells DOOM
By jskirwin on 6/16/2008 12:35:26 PM , Rating: 5
Next time start your post with "I too welcome our RIAA overlords." That'll impress the girls...

RE: Spells DOOM
By joex444 on 6/16/2008 3:39:57 PM , Rating: 4
Well, hopefully this spells doom for the DMCA itself.

A law which is abused and over used and can manage to destroy half the Internet is certainly something that would get looked at closer. I wouldn't doubt a complete abolishment of the DMCA at that point.

We were fine with the previous laws, the problem the RIAA encountered was their failure to capture a new market that could itself be self-sufficient without them. The MPAA is now learning this fact, and the AP is just whining. By going after the low level guys they are testing out how the courts will decide cases so they can go after bigger fish. Ultimately I think if this succeeds they may actually end up destroying the DMCA, and with it, the RIAA & MPAA.

RE: Spells DOOM
By GaryJohnson on 6/16/2008 7:49:30 AM , Rating: 4
It only spells doom for sites that repost content word for word from sources that don't want their content reposted word for word.

If you're reposting content from a source that doesn't care, you're ok.

If you're citing a source for content written in your own words, you're ok.

If someone doesn't want Google reposting portions of their site, they can prevent it using robots.txt and/or meta tags.

RE: Spells DOOM
By mmntech on 6/16/2008 9:31:19 AM , Rating: 2
Ideally you want to put it in your own words but you are allowed to use small snippets of text provided you cite it correctly. Drudge seems to have done this. If this has changed, not only will this effect the internet but it will have massive repercussions on education, notably universities and colleges. This is basically saying you can't use somebody else's text for any purpose without gaining their explicit permission, regardless of proper citation.

I think we should rename the DMCA "Paula Abdul's Law", since when we take two steps forward, it takes two steps back.

RE: Spells DOOM
By GaryJohnson on 6/16/2008 11:18:30 AM , Rating: 2
There are special exemptions that let you use copyrighted works for educational/non-profit purposes.

The Drudge Retort has advertisements, so at the very least it's generating revenue. If the owner could show the site is non-profit that might be a defense against the takedown.

Also, if you look at the infringements in question, they weren't really properly cited. There's no mention that the material was copied from the AP articles or that the material is copyrighted by the AP. (Even though it is obvious this is the case if you follow one of the links.)

The DMCA is bad, but that's not what this is about. This is just basic copyright violation.

RE: Spells DOOM
By MatthiasF on 6/16/2008 7:53:42 PM , Rating: 2
It should be noted that under copyright law, education and non-profit are not exclusive. To quote:

"1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;"

As in, not nonprofit OR educational, but nonprofit AND educational.

RE: Spells DOOM
By AntiM on 6/16/2008 8:28:55 AM , Rating: 2
It's just another example of how the internet has made certain business models obsolete. They will exhaust themselves sending out DCMA notices but in the end, it will have very little impact on preventing the snippets from being posted. If AP goes under, it won't be because people are posting snippets of their stories; it will be because they simply aren't needed anymore. Sounds like another industry we often talk about around here.

RE: Spells DOOM
By JustTom on 6/16/2008 8:54:29 AM , Rating: 2
If sites are allowed to copy AP content wholesale it will certainly harm AP. If they truly weren't needed their content would be ignored rather than copied.

People harp about outdated business models - I do agree that the entertainment industry was slow to embrace the internet - but I have see no one suggest a valid business model that will limit illegal copyright infringement. Frankly, it is my belief that if something can be had for free people will get it for free no matter the legal, ethical, or moral violations involved. People like free stuff and there aint much we an do it about it.

RE: Spells DOOM
By achintya on 6/16/2008 2:26:30 PM , Rating: 2
Yes, complete copying of articles is illegal and should not be permitted(Think about plagiarism). But in most cases these are just 'snippets' of the original articles. All contained within the original writing of the poster. Therefore this is not full fledged copying. Also most of the times a link to the original articles is also provided so as to give credit.. therefore this is just citation not completely ripping off of the original articles.. in fact if they(AP) are providing the articles online free of charge then what is their problem if traffic to their website is getting increased?? and that too by a few not-so-rich people looking to make some small money off on disseminating information which they have gathered/inferences they have made. There is no harm done by that. Both parties thus are in a win-win situation. Wonder why AP wants to go into a lose-lose situation....

RE: Spells DOOM
By CryptoQuick on 6/18/2008 2:10:34 AM , Rating: 2
Speaking of spelling... DailyTech, would that be the Digital Cillenium Mopyright Act you're referring to in your title?

"Spreading the rumors, it's very easy because the people who write about Apple want that story, and you can claim its credible because you spoke to someone at Apple." -- Investment guru Jim Cramer

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