The DMCA takedown requests Rogers Cadenhead found waiting for him in his inbox on June 10 were not the first he had received. They weren’t even the first sent to him by the Associated Press. This didn’t make Cadenhead, publisher of the Drudge Retort, any less shocked when he found out their targets.
DMCA takedowns — short for the Digital Millennium Copyright Act, passed in 1998 — are notifications sent from copyright holders that claim infringement. Publishers who honor the requests are protected from future lawsuits, effectively releasing them from any liability.
But in this instance the seven takedowns filed by the Associated Press were for quoted excerpts ranging from 33 to 79 words — what most publishers would consider fair use. Five of the six posts in question contained user-created headlines. Every single one of them provided links to the legally-published AP content.
“In each one, the quoted text from an AP story was minimal,” Cadenhead told me in a phone interview. “It was like 30 to 70 words. This is so common around the web that it was completely shocking to get these takedowns for such a small amount of material.”
Launched a decade ago as a parody of the Drudge Report, the Drudge Retort eventually evolved into what Cadenhead referred to as a “response” to Matt Drudge’s famous site. It currently has approximately 8,500 registered users, many of whom post links and short excerpts to articles of interest.
As noted previously, this wasn’t the first time the site’s publisher had received takedowns from the AP.
“In April they found a couple of users who were posting whole text of articles,” Cadenhead said. “And I told their lawyer we neither condone or encourage that. We honored the takedowns and I made two different announcements to the users. Without identifying the news organization I told them that we received these complaints and you shouldn’t post the full text of articles. When you’re sharing a link to a news story you should confine yourself to one or two lines of quote and you shouldn’t need much more than that. I figured that would be the end of it.”
He noticed something peculiar in one of those requests, however. “One of the 14 takedowns at the time — it wasn’t full text,” Cadenhead explained. “It wasn’t even a significant amount of text…it was like two sentences with a link to it. At the time of the takedown I expressed my concern that we think this is fair use. This was a small amount of quoted text and it linked to an AP story. Commenters commented on it and were evaluating the article. That’s a fundamental aspect of blogging. That’s when they told me that they don’t think that’s fair use either.”
This is not the first time the AP has challenged conventional wisdom when it comes to fair use. In 2007, Google News began purchasing AP content rather than simply linking to its articles on other sites — this coming after lengthy negotiations with several wire services. Some publishers complained at the time that this would drain traffic from their sites and essentially transform the search giant into a content producer.
These moves are particularly worrisome for some bloggers who provide opinionated commentary on mainstream news articles. Many of these writers tend to block-quote content, interspersing it with analysis and opinion. Though there’s no clear-cut definition for what constitutes fair use, a number of publishers would consider it fine to quote up to 100 words from a news article and as many as 300 from a book. “On the Drudge Retort, when you’re submitting a news story you’re limited to 400 characters (around 80 words) in the summary,” Cadenhead told me. “I would regard that in most cases fair use. Especially if you’re using quotes in the article…particularly if you paraphrase or put your own spin on it.”
But what he finds even more perplexing is that the AP, in his opinion, is shooting itself in the foot. After all, the Drudge Retort (and other sites like it) is essentially sending hordes of readers to legally-published AP content. For instance, when Drudge linked to Bloggasm back in November it sent nearly 1,000 people to the post.
I asked Cadenhead why he thinks he has been targeted by the AP. “It’s possible that they’re just becoming more regressive in this area,” he replied. “If they’re up there selling a service that’s just headlines, titles and ledes, they can see what happens on blogs as a threat to that business. It’s hard to say though because for me they’re not communicating with me on any of this. There’s not really a dialog where they say ‘it’s OK for you to do this as long as you don’t do this.’ They’re saying everything is illegal…This is a social news site. I have to communicate to my users what’s permissible and what isn’t, but they make that difficult because they don’t tell anyone what’s allowed.”
The AP didn’t respond to my emailed questions, but in the comments section of Jeff Jarvis’s Buzz Machine, Jim Kennedy, a representative from the organization, offered a few clarifying statements. “We get concerned when we feel the use is more reproduction than reference, or when others are encouraged to cut and paste,” he wrote. “ThatÃ¢â‚¬â„¢s not good for original content creators; nor is it consistent with the link-based culture of the Internet that you and others have cultivated so well.” He went on to call the blogosphere an “indispensable part of the new ecosystem.” He did not, however, address any reasons for why these specific posts were targeted.
Cadenhead, for his part, has since taken down the seven posts. The way that the DMCA was written, he said, requires that a publisher must honor the requests regardless of whether he disagrees with their claims. As for how he will deal with such issues in the future, he remains perplexed.
“That hasn’t been decided yet,” he said. “It would be crazy to want a fight with the AP — one of the largest news organizations in the world — considering the Drudge Retort is basically a one-man operation. But I also don’t want to capitulate on an important principal — which is that linking while excerpting sparingly on blogs is fair use. It benefits both sides of the equation.”