Yesterday I mentioned the Main Stream Media Meltdown of the AP filing DMCA takedown notices against against Rogers Cadenhead and his community site Drudge Retort.
Shelley Powers left a comment that made me think.
“Rogers did not post enough information for any of us to form a knowledgeable opinion. What he’s done is trigger a pile on.
AP could be wrong, could be right — but we don’t have all sides of the story, we don’t even have the 7 posts, or have read all the communications.
I would think that people would appreciate getting all sides of the story before forming an opinion, wouldn’t you?”
He did post enough information on his site. The links are at the bottom of the page.
DMCA Takedown Request is here:
The Alleged Infringement is here:
AP is working under the theory that it is infringement based as far as I can see on the last sentence of the Copyright Office Fair Use definition:
“Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”
This sentence should have special meaning for Shelley from the Lane Hartwell Copyright dustup.
Which strictly interpreted would give the AP the ‘right’, as every bit of AP work does have the All Rights Reserved Disclaimer. This however does not give them a free pass relating to Fair Use.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research.
Source: US Copyright Office Website
As far as the AP side of the story, this note has appeared on numerous blogs. I stole this from Matt Ingram
AP wants to fill in some facts and perspective on its recent actions with the Drudge Retort, and also reassure those in the blogosphere about AP’s view of these situations. Yes, indeed, we are trying to protect our intellectual property online, as most news and content creators are around the world. But our interests in that regard extend only to instances that go beyond brief references and direct links to our coverage.
The Associated Press encourages the engagement of bloggers — large and small — in the news conversation of the day. Some of the largest blogs are licensed to display AP stories in full on a regular basis. We genuinely value and encourage referring links to our coverage, and even offer RSS feeds from www.ap.org, as do many of our licensed customers.
We get concerned, however, when we feel the use is more reproduction than reference, or when others are encouraged to cut and paste. That’s not good for original content creators; nor is it consistent with the link-based culture of the Internet that bloggers have cultivated so well.
In this particular case, we have had direct and helpful communication with the site in question, focusing only on these issues.
So, let’s be clear: Bloggers are an indispensable part of the new ecosystem, but Jeff Jarvis’ call for widespread reproduction of wholesale stories is out of synch with the environment he himself helped develop. There are many ways to inspire conversation about the news without misappropriating the content of original creators, whether they are the AP or fellow bloggers.
Jim Kennedy
VP and Director of Strategy for AP
Posted by: Paul Colford | June 13, 2008 11:43 AM
I have problems with the communication reportedly from the AP saying the words are from Jim Kennedy, VP and Director of Strategy, but is posted by someone calling themselves Paul Colford.
There is no disclaimer that Paul is writing for Jim, and this begs the question of whether or not Jim has his own email address or just a title. Jim Kennedy does work for the AP in that position according to the Media Center at the American Press Insitute. Paul Colford appears to be another Director of Media Relations at the AP according to this:
So the question beyond authenticity of authorship is the rambling assertion that they like bloggers, yet assert that licensing is the only true path to news nirvana.
The other nugget is the concept of “hot news misappropriation“, put forth by AP’s Intellectual Property Governance Coordinator Irene Keselman, whom if her LinkedIn profile is true is a part timer as she lists her own business as well but whose website seems to be MIA.
hot news misappropriation
It was bullshit yesterday and is bullshit today. Take for example the current situation. Every one of the alleged infringements were from sites that is paying the AP for content. The AP in reality has no standing here as it is no longer ‘hot news’. None of the infringements were sucked from the AP site. One could wonder if the AP wants to knock the RIAA off the top spot as the most reviled organization online.
Fair Use is an important part of our society, and is vital online.
Everything that is published in the United States is covered by copyright, and is also available for Fair Use. There is still no definite answer as to which percentage of an item consists of Fair Use, as some items cannot be easily chopped up into discrete bits such a photos, but a portion of a textual piece has been for many years even before the internet, has been used for criticism, comment, news reporting, teaching, scholarship, and research.
The only argument we are having is the percentage.
The AP cannot be allowed to win this one.
6 responses so far ↓
1 Shelley // Jun 14, 2008 at 8:40 pm
I may have missed those two links at the bottom of Rogers articles, but I don’t remember seeing them when I wrote my comments.
Regardless, we don’t know what the previous communications between Rogers and the AP reps covered. We have the formal DCMA, but at the same time we also have evidence of prior communications.
The point I wanted to make is that we assume guilt and innocence based on who we prefer to be guilty or innocent, not necessarily on facts.
And frankly, I still doubt that these necessarily fall into “fair use”. That may make people angry, but it doesn’t change the fact that these may not be fair use. Be interesting to see what the lawyer bloggers say.
2 alan herrell - the head lemur // Jun 15, 2008 at 9:21 am
I don’t think any of their previous communications are relevant in this case as the end result was a DMCA notice. Conciliatory or confrontational exchanges are only significant if, as you say we want to bolster our assumptions.
Rodgers is asserting Fair Use and AP is asserting Copyright Infringement.
Using the headline and the first paragraph(s), can be a case for infringement, as we already have scraping and splogging, clearly defined, which is what one of the primary goals of the DMCA act is.
For the sake of argument 6 of the 7 alleged infringements, do meet the scraping test, and based upon what information we do possess, may be valid infringements.
The first one is the headline, but has its ‘content’ from the body, rather than the first text following the headline.
Having had one of my sites scraped, and filing my own DMCA notices a couple of years ago, I have a little more insight into the process, than most folks. In my case the entire postings were being used and not excerpts. Unfortunately, that site is gone, so I cannot provide you with links to the relevant passages .
However, Rodgers says;
“I have no desire to be the third member of that club, but sharing links to news stories of interest has become an essential component of how millions of people read and evaluate the news today. When linking to articles, bloggers commonly include excerpts of the article for the purposes of criticism or discussion. Some AP member sites encourage this kind of reuse. Yahoo News, the source for two disputed stories, invites bloggers to use items from its RSS feeds. USA Today, the source for two others, includes a browser widget alongside articles that facilitates their submission to Digg, Mixx and other sites. Wade Duchene, the attorney who helped me win the domain name arbitration for Wargames.Com, says that what we’re doing on the Retort is the “absolute definition of fair use.”.”
Having said that, I tend to agree with Rodgers theory, and it is a theory at this point, because Fair Use is determined on a case by case basis.
Under Rodgers theory pointing out that AP licensees are providing links and widgits for reuse, I wonder again what arraignments/terms and conditions AP has with Yahoo, USA Today, Google and others.
Where we do not have enough information, and need more is, since these alleged infringements are coming from licensees sites, why is the AP doing the heavy lifting? Are they the news version of the RIAA?
What ‘rights’ do the licensees have from the AP? Do they include RSS reproduction, do they become subsidiary works, as they are a part of a licensees site whose own copyright is created upon publication?
At the end of the day, I consider these to be Fair Use, as they are excerpts, and contextual in nature for discussion, rather than infringement, for profit, despite Rodgers having Ads on the site.
Which begs the question of where personal ends and commercial begins, as Copyright is clear on the rights of reproduction, and assignment of those rights.
The devil is in the details of percentages relating to monetary earnings. As an author you are probably more familiar with that than I.
As for law bloggers, I would really like to see what William Patry says.
http://williampatry.blogspot.com/
He is the top Google Copyright Lawyer. He also writes clearly, without the usual ambiguity that most lawyers present.
3 libhomo // Jun 15, 2008 at 4:59 pm
There is a strong right-wing bias to AP’s content that makes me a bit uncomfortable linking to it or quoting it. However, I signed the boycott petition because big media shouldn’t be able to bully away the constitutional rights of bloggers.
4 Irene Keselman // Jun 18, 2008 at 9:03 am
This is Irene from AP legal.
Please remove this story or I’ll sue your ass so hard you’ll be scrounging copper from foreclosed houses to pay your legal bills.
You have no idea how hard we can rape you. And yes, that does mean that I will pay large black men using AP money to rape you.
This probably won’t be fun for you.
This is your DMCA takedown notice. Take this down or it’ll be “My Sharona” for you, my friend.
5 Mike // Jun 18, 2008 at 9:14 am
Shelley, do you actually have any idea what fair use is? You do know that the AP can’t establish stricter fair use standards than the law specifies right? There is no need to know any more of what happened but the DMCA takedown notices and the original posts.
You are wrong. AP is wrong.
Quod erat demonstrandum.
6 Michael Alan Miller » I say “fuck” a lot // Jun 18, 2008 at 9:34 am
[...] and fuck anyone who attempts to take away our rights, and fuck the sycophants and bootlickers like Shelley Powers, mentioned in the story and who is also the first [...]
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