AP Goes After Bloggers Under DMCA

Posted by Liza Sabater, Culture Kitchen at 12:01 PM on June 13, 2008.

Rogers Cadenhead, founder and publisher of The Drudge Retort, has been Cease and Desisted by AP News for publishing fragments of their syndicated news articles and reports.

Yes, fragments, not the whole articles. Go to Rogers' site to read the reasons given by AP.

Adding a quote to a blog post is very much like the sampling of a hook or a beat on a song. It's why so many people were opposed to the Digital Millenium Copyright Act. It's not only that albums like Beck's Odelay or Public Enemy's Fear Of A Black Planet would never had happened. Documentaries, archival works, opinion or scholarly writing would be all but non-existent if it means that now journalists, bloggers, historians and scholars would need to pay publishing houses for every single quote and/or sample they need for their work.

That's why I blame Hilary Rosen, the woman who became the face of the RIAA and the lobbyists who successfully paid Congress to pass the DMCA. Granted, I applauded her for her recent "I am not a bargaining chip" post, in re: the other Hillary (La Clinton), but it doesn't mean La Rosen gets a free pass.

The DMCA's main purpose is to circumvent due process by saying that trade laws trump civil rights law. So a corporation's right to make money from their "product" however way they want trumps the rights of individual citizens who would want to express themselves freely about said product through comment, parody, sample or quoting.

The DMCA throws the onus of proving Fair Use on the individual "speaking" the copyrighted materials and not on the owner of the copyright. It was an unprecedented move and one that many consider anti-constitutional since it basically allows for individuals to be considered guilty of copyright infringement until they prove themselves only in a court of law to be innocent.

Rogers gives us the perfect example of how the "corporate bottom-line trumps free speech" shenanigans is rationalized by AP using the DMCA:

Here's one of the six disputed blog entries:

Clinton Expects Race to End Next Week

Hillary Rodham Clinton says she expects her marathon Democratic race against Barack Obama to be resolved next week, as superdelegates decide who is the stronger candidate in the fall. "I think that after the final primaries, people are going to start making up their minds," she said. "I think that is the natural progression that one would expect."

If you follow the link, you'll see that the blog entry reproduces 18 words from the story and a 32-word quote by Hillary Clinton under a user-written headline. The blog entry drew 108 comments in the ensuing discussion.

I have all the expertise in intellectual property law of somebody who's never been sued, so standard disclaimers apply. But I have difficulty seeing how it violates copyright law for a blogger to link to a news story with a short snippet of the story in furtherance of public discussion.

AP feels otherwise. In a June 3 letter, AP's Intellectual Property Governance Coordinator Irene Keselman told me:

... you purport that the Drudge Retort's users reproduce and display AP headlines and leads under a fair use defense. Please note that contrary to your assertion, AP considers that the Drudge Retort users' use of AP content does not fall within the parameters of fair use. The use is not fair use simply because the work copied happened to be a news article and that the use is of the headline and the first few sentences only. This is a misunderstanding of the doctrine of "fair use." AP considers taking the headline and lede of a story without a proper license to be an infringement of its copyrights, and additionally constitutes "hot news" misappropriation.

Keselman reverses the definition of fair use and claims in the take down that citizens only have the right to fair use if they pay for it : AP considers taking the headline and lede of a story without a proper license to be an infringement of its copyrights.

In other words, unless you pay for the "sample" you don't have the freedom to speak it in your work. You can't comment it, you can't opine on it, you can't analyze it, dissect it, fisk it if it means you are not paying for the right to do so. In effect, AP is trying to extend the rules of music sampling to text.

Well thank Hillary Clinton, now a blogger at Huffington Post and it's Senior Political Editor, for fucking around with free speech. Instead of pussy footing with the Human Rights Campaign, Hillary Clinton and Arianna Huffington's blog, she ought to be working to undo the constitutional damage she brought to our country.

So in Rogers Cadenhead's mess with AP, don't just blame the Bush administration and the DMCA. Blame Hilary Rosen as well.