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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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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.

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