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
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
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
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
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.