You are wrong. AP is wrong.

Quod erat demonstrandum.

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.

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.

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.