AP Challenges Web Sites over Fair Use, Limits Still Unclear

The Associated Press’ (AP) most recent attempt to protect its news content from online copyright infringement created an uproar in the blogosphere.

On June 10, 2008, the AP issued seven “take down requests” to Rogers Cadenhead, publisher of a Web site called Drudge Retort, targeting user-submitted posts which included AP content. The AP has since rescinded the requests and taken no further legal action, announcing instead a plan to create a clearer policy for the use of its content by Internet users.

Take down requests are issued pursuant to guidelines set out in 17 U.S.C. section 512(c)(1) of the Digital Millennium Copyright Act of 1998 (DMCA). The DMCA protects online service providers from liability for copyright infringement by Web site and blog content creators, and outlines the procedure by which an entity can ask that a Web site remove content it believes infringes on its copyright. Before entities can file lawsuits for copyright infringement, the DMCA requires them to send notices to service providers or content creators requesting that they remove content believed to be violating copyright.

The Drudge Retort, a parody of the conservative blog the Drudge Report, is a “social news site” like Digg, Redditt, or Mixx, which allows “its users to contribute blog entries, comments, and links to interesting news articles,” according to David Ardia of the Citizen Media Law Project (CMLP), a research center affiliated with Harvard Law School’s Berkman Center for Internet and Society. The Drudge Retort reports that it has 8,500 members. Ardia’s CMLP blog post on the issue is available at http://www.citmedialaw.org/blog/2008/associated-press-sends-dmca-takedown-drudge-retort-backpedals-and-now-seeks-define-fair-us. (Jane Kirtley, director of the Silha Center and professor of media ethics and law at the University of Minnesota, is a member of the CMLP board of advisors.)

According to Cadenhead, who wrote about the AP’s take down notices in a post on his personal blog at http://www.cadenhead.org/workbench/ap-dmca-summary, six of the take down requests the AP sent were aimed at “user submitted blog posts” and one was for a user’s comment on another user’s post. The posts and comment included excerpts of AP articles. The excerpts in question ranged in length from 33 to 79 words, Cadenhead wrote, and none included the full text of the articles. The posts included links to the original articles, and some included commentary on the articles.

Cadenhead listed the contested posts on his personal blog, showing the excerpts, their lengths, and the AP and user written headlines. Cadenhead told The New York Times for a June 17 story that he thought the issue extends beyond his own site. “There are millions of people sharing links to news articles on blogs, message boards and sites like Digg. If the AP has concerns that go all the way down to one or two sentences of quoting, they need to tell people what they think is legal and where the boundaries are.” Ardia, writing for the CMLP, also criticized the AP’s move, writing that “the posts AP is complaining about … invariably include links to the original articles and serve to drive traffic to the site hosting the original AP story.”

Ardia also suggested that the contested excerpts of AP articles might constitute “fair use” under federal copyright law. According to 17 U.S.C. section107, the use of another’s copyrighted work in news reporting or commentary on news reporting is generally considered fair use and does not infringe copyright. Under the U.S. Supreme Court’s decision in Harper and Row Publishers Inc. v. Nation Enterprises, 471 U.S. 539 (1985), courts considering “fair use” claims must take into account the purpose of the use of copyrighted material, the nature of the copyrighted material, the “amount and substantiality of the portion used,” and the effect the use has on the market. Ardia said that if the AP had filed a lawsuit alleging copyright infringement, the Drudge Retort could have successfully used fair use doctrine as a defense.

Previous AP lawsuits against two other Web sites that compile and distribute news content, but are not user-driven, are still pending. On Oct. 9, 2007, the AP filed suit against Moreover Technologies and its parent company, Verisign, according to an October 10 story posted on the Web site PCWorld. PCWorld reported that Moreover Technologies offers news aggregation services aimed at enterprises, individuals and application developers that include AP content. According to an October 9 AP story, the suit claims Moreover improperly displays AP’s headlines and portions of stories as part of its free, ad-supported services and reproduces full articles and photos through subscription services. The lawsuit, filed in United States District Court for the Southern District of New York, alleges copyright infringement, citing 17 U.S.C. section 101 and 501.

On Jan. 14, 2008, the AP sued the Web site All Headline News of AHN Media Corp., again claiming copyright infringement under 17 U.S.C section 101. According to Editor & Publisher, the AP “claims that AHN Media Corp. … copies AP stories from Web sites that legitimately carry them and redistributes them on its Web site and as a service it sells to other news outlets, competing for the AP’s customers.” The case is also being considered in the Southern District of New York.

A June 19, 2008 video news segment posted on the Web site Media Channel reported that the AP had attempted to impose fees on bloggers linking to its content. On April 14, 2008, a company called iCopyright announced in a corporate press release that it had been chosen by the AP to manage the fees it would charge Internet users to link to its content online. The press release is available at http://info.icopyright.com/news_041408_ap.asp.

Media Channel reported that bloggers were “ticked off” about the fee system, and had set up a website in protest of the AP’s actions at www.unassociatedpress.net, organizing a boycott against the news service. The Media Channel report quoted Ardia as saying that “the AP’s effort to impose these forced licensing fees is going to result in bloggers simply not using AP content.”

The New York Times reported that on June 14, the AP rescinded its take down requests to the Drudge Retort, and announced it would “attempt to define clear standards as to how much of its articles and broadcasts bloggers and Web sites can excerpt without infringing on The AP’s copyright.” AP Vice President and Strategy Director Jim Kennedy was quoted in The Times story as saying of the take down requests, “We don’t want to cast a pall over the blogosphere by being heavy-handed, so we have to figure out a better and more positive way to do this.”

– Sara Cannon
Silha Center Staff

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This page contains a single entry by cla published on October 14, 2009 1:18 PM.

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