Intellectual Property Law

Biting the Hand that Feeds (Traffic to) Them

By Michael Kwun

Last week, the Associated Press sent the Drudge Retort seven DMCA takedown notices, demanding that the site remove excerpts of AP articles ranging from 33 to 79 words that were linked through to authorized copies of the AP stories.

As as business matter, the AP's approach is curious. The AP makes money by licensing its stories to its members. Its members make money by getting people to read their stories. Links that send traffic to AP member sites are a good thing for the AP and its membership.

On the law, the AP's claims are weak. The Copyright Act allows you to make use of copyrighted content without asking for permission if your use is a "fair use." Based on what we've heard about the posts, there are strong arguments favoring fair use on each of the four factors that courts look at when deciding the issue:

• Purpose and character of the use: Drudge Retort posts regularly draw numerous comments, posted on the same web page, from Drudge Retort readers. This transforms the AP's content from (an excerpt from) a news story into a discussion and a debate.

• Nature of the copyrighted work: The AP's stories are compilations of facts, which means that the copyright in those stories is comparatively thin. In a similar situation, the First Circuit Court of Appeals once said this (emphasis added):
  

  Comline's Exhibit 21E, the abstract alleged to have infringed Nikkei's Exhibit 21C, only copies the first paragraph of a six-paragraph article. Comline's abstract copied approximately twenty percent of the material in the article . . . . In the context of articles . . . consisting almost entirely of Nikkei's reporting of unprotected facts, we conclude that this one-paragraph abstract of a six-paragraph article is not substantially similar to the Nikkei article in a quantitative sense.

• The amount and substantiality of the portion used: The excerpts, from the descriptions we've heard, don't sound very substantial. Indeed, in one instance, most of the excerpt quoted Hillary Clinton. We hope the AP doesn't imagine it owns the rights to Clinton's words alone.
• Market harm: The posts linked directly to authorized copies of the AP stories. It's hard to see where there could be any market harm here.

If the AP were right, that would sharply limit a practice widely used throughout the blogosphere to help spread information and promote public discussion. Many of those bloggers have worked as reporters, so you'd think they'd be well attuned to the issues here. If copyright means what the AP seems to thinks it means (which seems questionable), maybe the problem is with the law, not the bloggers.

But although we think it appropriate to chastise the AP for playing the copyright card so quickly, we also give them kudos for admitting that there may be a better approach. When their takedown notices drew the ire of the Internet, the AP had second thoughts. Speaking with a New York Times reporter, AP vice president Jim Kennedy admitted that the DMCA notices were "heavy-handed" and said that the AP would be rethinking its policies. According to Kennedy, "We are not trying to sue bloggers. That would be the rough equivalent of suing grandma and the kids for stealing music. That is not what we are trying to do."

We're glad the AP is willing to reconsider its position, and look forward to seeing what they come up with this time around. We can't resist saying, however, that we hope the new policy won't look like the current policy (which apparently pre-dates the Drudge Retort situation) in which the AP asks for $12.50 ($7.50 if you're a non-profit - what a steal!) to use a five word excerpt.

P.S. Our own suggestions for bloggers can be found in our Legal Guide for Bloggers.

Full post as published by Electronic Freedom Foundation - Deep Links on June 17, 2008 (boomark / email).