Friday, June 20, 2008

PSD via Flickr (CC license) AP and the Drudge Retort have resolved their copyright issue -- but do bloggers, journalists, and others remain on thin ice?

This week I've been covering what appears to be an assault by the Associated Press on the principle of fair use. While this particular flap (which involves posts to a community site called the Drudge Retort) concerns bloggers and site users, many say it could end up having a chilling effect on journalism and free speech.

Late yesterday, after I posted my roundup on the public debate about this controversy, I received by e-mail this update on the situation from AP's director of media relations Paul Colford. He wrote:

"In response to questions about the use of Associated Press content on the Drudge Retort web site, the AP was able to provide additional information to the operator of the site, Rogers Cadenhead, on Thursday. That information was aimed at enabling Mr. Cadenhead to bring the contributed content on his site into conformance with the policy he earlier set for his contributors. Both parties consider the matter closed.

"In addition, the AP has had a constructive exchange of views this week with a number of interested parties in the blogging community about the relationship between news providers and bloggers and that dialogue will continue. The resolution of this matter illustrates that the interests of bloggers can be served while still respecting the intellectual property rights of news providers."

Late yesterday AP also issued another statement (http://snurl.com/2mdup), which contains no additional information. Neither AP statement addresses any of the key questions and concerns raised by myself and others -- especially in the many comments from Tidbits readers here and here. Also, while something has apparently just happened, there's no info available yet about exactly how this situation was resolved, whether the Drudge Retort will be restoring any of the content currently missing due to AP's DMCA takedown notices, and whether AP plans to change its policies and practices so as not to erode the principle of fair use.

Yesterday I contacted Colford by voice mail and e-mail to request further information and clearer answers. So far, the statement above is the only answer I have received.

This morning, Drudge Retort publisher Rogers Cadenhead posted his own statement on the resolution. Regarding what actually happened, he hedges for now: "I won't reveal the details of this discussion until AP releases the guidelines for bloggers that it promised on Monday."

But Cadenhead provides much more insight, such as:

"I'm glad that my personal legal dispute with the AP is resolved, thanks to the help of the Media Bloggers Association, but it does nothing to resolve the larger conflict between how AP interprets fair use and how thousands of people are sharing news on the web. You could probably guess that by the lack of detail in AP's statement.

"...25 million people visited a social news site last month, and thousands of people are sharing news links in a way that's in direct conflict with AP's interpretation of fair use regarding the headlines and leads of its articles. 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.

"...When it appeared that I might end up in court on this issue, I got offers of help from the Electronic Frontier Foundation, Public Citizen and the Stanford Fair Use Project. ...Given the publicity of this dispute, the first blogger sued for excerpting a news story will have the best pro bono legal representation that massive press attention can buy.

"...Although AP will be releasing guidelines, I don't think the news service will be able to concede any ground to the blogosphere. AP sells headline and lead-only services to customers. Asking the company to concede there's a way people can share this information for free is like asking the RIAA to pick its favorite file-sharing client."

This afternoon, the BlogWorld Expo podcast interviewed Robert Cox of the Media Bloggers Association about this controversy. Due to a schedule conflict I didn't have time to listen to it live, but based on what Twitter users like Jay Rosen were posting about it while it was happening, it's worth a listen.

Where it stands now: Here are the main questions I'd like to see answered:

1. What exactly happened in this resolution? Who did what, and when? Did Cadenhead or other Drudge Retort contributors named in the takedown notices file any counterclaims based on fair use? Will any of the content taken down be restored to the Drudge Retort site? Also, who exactly are the "interested parties" referenced in AP's statement?
2. When will AP publish the "guidelines for bloggers" that it promised? Does AP intend those guidelines to apply only to bloggers, or also to journalists (amateur, independent, and professional), forums, social news/bookmarking services, and other venues? How could such guidelines be enforceable if they exceed existing law? If not legally enforceable, then what is their intent or purpose?
3. Does AP intend to keep issuing DMCA takedown notices for brief excerpts of its stories? In this case one of the takedown notices was for an excerpt just 33 words long. Just so everyone knows what to expect, what's the word length (or other criteria) of AP's threshold to issue a takedown notice?
4. What are AP's legal, business, or other reasons for cracking down on such short excerpts?
5. How can AP reconcile the principle of fair use with trying to sell licenses to any person or organization in order to quote as little as five words of their content?
6. Why do the terms of AP's quote license forbid negative criticism of AP and its partners? AP is in the news business, which relies on free speech -- so why are they seemingly trying to squelch critics?
7. How does AP respond to critics who say that what they're doing could cast a significant chilling effect on fair use, journalism, and free speech?
8. How would it affect AP's journalism and business (as well of that of its member news organizations) if every news or content publisher tried to implement copyright enforcement policies and practices similar to AP's?

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