Chances are you've heard all about the now-'resolved' dispute that opposed the Associated Press to social news sharing site Drudge Retort, over the fair - or unfair - use of AP quotes. Even more likely is the possibility that you've heard emotion-filled - and perhaps inaccurate - coverage of the affair. So this is an attempt to untangle some of the knots.

The four-point recap, clarifications
Lesson one: The blogosphere's outcry is heard
Lesson two: but the winner is?
Lesson three: AP - "Whither" or "Adapt"? Change the DMCA or set a legal precedent?


The four-point recap, clarifications

If you haven't followed the story, here's a four-point recap (or skip to next):

- Earlier this month, AP demanded that the Drudge Retort take down seven entries, which were in its view violating policies of fair use of content and the agency's copyright (AP wants to charge outside sources for using for excerpts longer than four words).
- Drudge Retort Web host Rogers Cadenhead consequently blogged about the takedown notice, and this created a ##-storm in the blogosphere, with many influential bloggers including TechCrunch's Michael Arrington and BuzzMachine's Jeff Jarvis calling on the boycott of AP content.
- Shortly after, on June 16, AP retreated, but didn't recant: it admitted that its request had been "heavy-handed" but didn't withdraw the takedown notices.
- Then, on June 19, AP issued a statement to say its conflict with Cadenhead had been resolved, after AP lawyers gave him guidelines to make the postings suitable, and that "both parties consider the matter closed." This really meant that Cadenhead agreed to modify the contested items and ended up not reposting them.

The guidelines discussed with Cadenhead have yet to be made public though, and the AP is working on a new set of guidelines for "fair use" of its content in general. "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," Cadenhead wrote on his blog. He told the New York Times' Saul Hansell that some of the key issues for AP related to protecting headlines and first paragraphs of stories.

First clarification: unlike what has been widely echoed on the Web and suggested by another New York Times article on June 16, AP was never supposed to meet the Media Bloggers Association (MBA) in order to draft guidelines for all bloggers, according to MBA President Robert Cox.

Another clarification: the blogosphere went ablaze when it learned that AP had filed a lawsuit against Cadenhead in June, seemingly out of the blue. According to Cox though, "Drudge Retort got on AP's radar due to the posting of entire articles with exact headlines which all parties agreed constituted copyright violations two months BEFORE the most recent spate of Digital Millennium Copyright Act (DMCA) Take Down Notices."

Lesson one: The blogosphere's outcry is heard

News of the Associated Press' June take-down notices was met with severe criticism, calls for boycott - and many profanities - by the blogosphere.

In one of his posts, entitled "FU AP," Jarvis wrote: "Bloggers, unless the AP recants and apologizes to Cadenhead, I urge you to avoid linking to the AP and to link to reporting at its source." Jarvis also encouraged bloggers to copy-paste full AP stories.

In a self-admittedly "ridiculous" post, after being quoted in an AP story, Harrington announced that "I've called my lawyers (really) and have asked them to deliver a DMCA takedown demand to the A.P. And I will also be sending them a bill for $12.50." According to Harrington this "is exactly what the A.P. would have charged me if I published a 22 word quote from one of their articles."

That short posting alone generated more than 230 comments - most of which were harshly critical of AP's stance at the time. The wildfire that spread in the blogosphere and the seemingly rapid turn-about of AP once again illustrated a known fact: blogs have gained enough traction and buzz-generating capacity to concretely influence and shape the media landscape.

Lesson two: but the winner is?    

One - erroneous - interpretation is to say that bloggers - won their battle against the traditional media Goliath, which was trying "to impose some guidelines on the free-wheeling blogosphere, where extensive quoting and even copying of entire news articles is common," - a quote from a New York Times story. (The Times' coverage of the affair was, according to Harrington, hindered by a conflict of interest, considering that the Times is one of AP's members and sits on its board of directors.)

But this isn't a victory for bloggers. "The A.P. is going to assert a much stricter interpretation of fair use than most people on the Internet are used to," reported Hansell on the Bits blog.

As mentioned above, Cadenhead had to agree to AP's proposed modifications, and ended up not reposting the material. Furthermore, this case is really a microcosm for the bigger issue of how to adapt "fair use" policies and copyright to the digital age in general.

"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," wrote Cadenhead, following his two-hour conversation and settlement with the AP.

"I think AP and other media organizations should focus on how to encourage bloggers to link their stories in the manner they like, rather than hoping their lawyers can rebottle the genie of social news."

While Cadenhead may be right in terms of global news consumption trends on the Web, the AP was clearly in its own right under the US DMCA, at least regarding the stories posted in their entirety with the same headline. But the legal provisions concerning "fair use" of content for smaller excerpts have remained vague - simply undefined - until now, something the AP hopes to reform by setting guidelines.

"I think it would be helpful for bloggers and users of social news sites to know what the AP believes to be fair use of their copyrighted work," said Cadenhead's lawyer. But "I hope that any guidelines that are issued are not interpreted as an agreed definition of fair use" under copyright law.

Lesson three: AP - "Whither" or "Adapt"? Change the DMCA or set a legal precedent?

The Associated Press versus Drudge Retort - blogosphere - affair throws light onto two main issues:

- Does this case exemplify the 'old media' versus 'new media' divide? Is the AP's stance representative of its inability to adapt to a new context?

Yes, in the eyes of new media guru Jarvis: "I value the AP and don't want it to die. I want it to morph to a new model and a new future. But I am afraid that in its fights, we are seeing its inability to adapt."

On the other hand, few bloggers have pondered the more controversial view that the AP's approach may actually be a sign of its willingness to adapt - granted, not yet to the 'utopian' world copyright-lessness. But the AP, in its own way and after being "heavy-handed," is now attempting to define new standards that are adapted to the digital age. (Read this note on June 13 by Jim Kennedy, VP and Director of Strategy for AP.) No doubt some of the outspoken bloggers mentioned previously could be quick to shatter this argument.

- As is often the case, the law doesn't evolve as rapidly as the context it seeks to protect. The blurry wordings of the current DMCA must either be reformed quickly, after multilateral consultation, or the issue of "fair use" of content will eventually be settled in court and set a precedent, costing either news organizations or bloggers - presumably both.

This is the real issue at stake: how fast can the law be adapted to the reality of the Web, in order to avoid costly conflicts over subjective interpretations of "fair use" of content? As Hansell concluded in the Bits blog, "the unsettled state of the law makes it a gamble to take the matter to court."

A costly gamble, whether it ends in a loss for the AP or for bloggers. Or both.

Note that, just in case, no AP material longer than four words was excerpted in the above.

Bloggers: you can also watch this video by DigitalJournal.com for advice from Harvard Citizen Media Law Project Director David Ardia.



Source: Buzzmachine (here and here) - Techcrunch (here and here) - Associated Press - New York Times - New York Times Bits blog - Mediabloggers.org - The Moderate Voice - paidcontent.org