Last week, the Associated Press ("AP") sent a takedown request under the Digital Millennium Copyright Act to Rogers
Cadenhead, the founder of Drudge Retort, a liberal alternative to (and parody of) the well-known Drudge Report,
demanding that he remove six user-submitted blog entries and one user
comment on the site that contained quotations from AP articles. Today,
the New York Times
reported that AP was reconsidering its request while it creates a set
of guidelines for bloggers and websites that excerpt AP material.
The Drudge Retort is a community site similar to Digg and Reddit,
allowing its users to contribute blog entries, comments, and links to
interesting news articles. According to Cadenhead, none of the six
posts republished the full text of
an AP story; instead, each contained quotes ranging in length from 33
to 79 words (although the posts have been removed, Cadenhead has
provided a summary of them here).
Of course, you might be skeptical whether such minimal -- and no doubt
widespread -- quoting of AP content is actually copyright infringement,
and you'd be right. Indeed, a number of prominent bloggers took AP to
task (see here and here)
for sending the takedown notice and ignoring what has become the
general practice in the blogging community of using headlines and
excerpted quotes from MSM sources. As Jeff Jarvis notes, the AP "is ignoring the essential structure of the link architecture of the web. It is declaring war on blogs and commenters."
In fact, it is very likely that the posts AP is complaining about on Drudge Retort are permissible fair uses
under the Copyright Act. First, several posts appear to be offering
commentary on recent news items. The use of another's copyrighted work
for the purpose of
criticism, news reporting, or commentary, will generally weigh in favor
of fair use.
Second, all of the posts use fewer than 80 words from the original AP
articles. While there is no bright line that defines how much of a
copyrighted work can be copied and still be considered fair use, courts
will consider the amount and importance of the material copied in
assessing what is permissible. I can't tell how long the original AP
articles were, but it's likely that all of the articles were
substantially longer than 80 words.
Third, it is hard to see how the posting of AP headlines and 80 word
snippets could possibly impair the market for the original AP articles
(when evaluating fair use claims, courts are most concerned with
whether the copying will undercut the market for the original work).
Instead, the posts AP is complaining about would seem to be doing just
the opposite. Users of Drudge Retort, and sites like it, post these
headlines and snippets for the very purpose of alerting others that
some interesting piece of news exists. These snippets invariably
include links to the original articles and serve to drive traffic to
the site hosting the original AP story...