Backstory on AP - Drudge Retort Issue

In reading a small slice of the coverage of the AP - Drudge Retort contretemps it struck me that a lot of the more breathless coverage in the blogosphere stems from the rather larger misperception that one day last week, out of the blue, Rogers Cadenhead got slapped with a lawsuit by AP.

As one of the few people who has seen all the legal documents in the case and has actually read the Digital Millennium Copyright Act I can see it would be wise for some folks to cool down and acquaint themselves with the rather prosaic facts in this matter.

AP first contacted Rogers in April not June. They sent Rogers a "cease and desist" letter on April 15th which cited a couple of entries on Drudge Retort as examples of their claim that Rogers was "encouraging" copyright infringement. One of those examples was the whole text of an article and the entire headline the others were similar. Rogers failed to respond until May 14th due to a mix up with his mailing address at which point AP sent him a Take Down Notice for 14 other posts, 13 of which were whole text/exact headline posts to his site. Rogers disputed the 14th entry as fair use but took it down as required under DMCA. Rogers notified his contributor, the person who posted the content, but that person did not file a counter-claim and so the post remained removed.

So, 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 DMCA Take Down Notices. Technically, Drudge Retort got onto AP's radar because those posts were flagged by software used by AP called Attributor. This is a data mining spider similar to the bots and web indexers used by search engines; content companies can use it to track the use of their content on the web. It is very important that people understand this because it makes clear that the AP is not on some wild rampage through the blogosphere, lawyering up to to go after every blogger who quotes an AP story in any way. Yet that is how this story has been portrayed including by a lot of people who should know better but are having too much fun bashing AP.

In June, Rogers got more take down requests, these were not whole text/exact headline entries and 9 of the 10 posts appeared to him to be examples of "fair use". It was about this time that Rogers posted about it to his blog and sought help which led him to the Media Bloggers Association.

As we have done in hundreds of other cases we agreed to help Rogers by offering him legal support and reaching out directly to the plaintiff to see if we could resolve the matter without getting into a major legal battle. In all but 14 (now 15) cases have we have not had to go public or get into any sort of major battle to resolve a case. Most of the time the legal threat evaporates when the plaintiff discovers that no only does the blogger have representation but that he has a large law firm defending him. Sometimes the blogger is in the wrong, usually because they do not understand media law, and once we explain the law to them they make changes to their site that resolve the issue. In those cases where we take a hard line because we believe the blogger is in the right we stand our ground until we get a positive outcome for the blogger.

In this case, I was able to reach out directly to senior management at AP because the Media Bloggers Association had worked with the AP in the past to syndicate an aggregated feed of blogger coverage of the Scooter Libby Trial out to 750 news web sites. That project was viewed within AP as a major success. My hope was that we could work with AP to quickly and quietly resolve this matter as we have done so often in the past.

Unfortunately, by the time I spoke to Jim Kennedy the Jarvis FU AP post was up and apparently there was a story on Gawker and so the ball was rolling. In that conversation with Jim my first objective was simply to determine whether there were any more shoes that were going to drop on Rogers, the Drudge Retort and their community of bloggers. Jim told me that folks at AP had met to consider the matter and that AP was not planning any additional action against the Drudge Retort. I then raised the issue of the outstanding DMCA Take Down Notices and asked if we could meet before Friday June 20.

At this point let me address another misperception here. I am not a lawyer but if people will read it for themselves they ought to see that DMCA has a very specific set of steps that must be followed to give both sides protections under that law:

1. A copyright owner who believes their copyright has been infringed online sends a notice ("DMCA Take Down Notice) to the web host.

2. The web host has no choice but to remove the content described in the notice.

3. If the person who posted the content disagrees they file a counter-claim in federal court within 10 days.

4. After the counter claim is filed, the court sets a date and the two sides duke it out in court.

While this is going on the content remains DOWN and can only be put back up if the judge finds in favor of the counter claimant.

Once you understand this then you can see how this has gotten a bit muddled. Rogers Cadenhead IS a blogger and plenty of people know him as a blogger but the Drudge Retort is a not his blog in any traditional sense of the word. It is a social news sharing site like Digg. Drudge Retort is also not incorporated (it should have been and likely will be after this). So when Rogers says he got a take down notice it is confusing because really Drudge Retort got the notice and Rogers was named because the site is not incorporated. He was always required to respond by taking down the content because he received the initial notices in his capacity as the owner and operator of Drudge Retort - in other words, as a web host not a blogger.

A couple of the June Take Down items were actually posted by Rogers so in those few cases he was put on notice as a web host but was, in effect, simultaneously notified as a blogger (for posts he himself published). The Take Down Notice that prompted Rogers to contact the MBA was dated June 10. The DMCA allows up to 10 days to file a counter claim so the contributors (including Rodgers-as-contributor) have until Friday June 20 to file a counter claim. This is why I asked AP to meet this week, just in case we are not able to work something out that satisfies Rogers.

A final note, there has been a lot said about the absurd notion that the MBA thinks it is representing "all bloggers" or that the AP is "negotiating" with the MBA. Ridiculous. We were approached for help by Rogers Cadenhead and, as we have done hundreds of times over the past four years, responded by offering him pro bono legal counsel and to set up a direct dialog with the plaintiff to see if the dialog could resolve the problem. We represent A BLOGGER and achieving an outcome acceptable to that blogger is our goal. Any discussion about how AP could better communicate its view of what is and is not acceptable is important and useful but secondary to the primary issue of getting to resolution for the blogger we agreed to help.

In looking back as to how that notion got out there, I see The New York Times article which ran over the weekend. While the article was factually correct it mischaracterized what was going on in a way that caused a great deal of misunderstanding.

So, let me try to address that too. In wrapping up my call with Jim Kennedy I expressed my view that it seemed incumbent on the AP to offer bloggers a better understanding of what the AP did find acceptable, to offer some sort of guidance which might help bloggers operate in a way less likely to draw the attention of the legal department and thereby reduce the number of legal threats made against bloggers. Such a discussion is entirely in keeping with our mission as an organization. Looking back on it now it may seem incredible but I told him that if he was willing to come up with some sort of guidelines, the MBA would help promulgate them as much as possible. The concern being that no one would know the outcome of such discussions and so any guidelines they came up with would be a tree falling in the forest. Jim knew the MBA could help with such things because our members include quite a few widely read bloggers who would most likely have been willing to consider putting up a post about it if they were asked. Apparently Jim told The New York Times the he was going to meet with me per our conversation but the way that came out was that the sole purpose of the meeting was to negotiate guidelines for bloggers. That take on the conversation was then twisted into the absurd notion that that MBA was going to meet with the AP for some sort of binding arbitration to negotiate terms on behalf of all bloggers. Even after I picked up the phone and explained the actual purpose of the meeting - to sort out what to do about the outstanding DMCA Take Down Notices - some bloggers just continued to run with this absurd story in order to advance an agenda that I can assure you has nothing to do with resolving the case at hand.

The unfounded attacks on the Media Bloggers Association are particularly troubling because a lot of good people have put in a great deal of time for no pay (including me) to help an awful lot of bloggers. These types of attacks detract from the our mission and make it just that much harder to provide education, legal support and dispute resolution services to bloggers. While I understand perfectly well the nature of the blogosphere having engaged in many past efforts to stir up blogstorms, my purpose in doing so for the MBA has always been to shine a bright light on improper attempts to suppress blogger speech in order to advance the mission of the MBA. We are an association with a laudable mission, we do a lot of good work for the blogging community, and once we get our new initiatives rolled out this summer we hope to extend our support and services to as many bloggers as care to subscribe to that mission. For those folks who care to join us you can fill out a simple contact form and we will email you this summer when our new sign-up process is online.

NOTE: Amazingly there are now stories out there conflating two entirely false stories, linking them to the Drudge Retort story and then going way beyond the edges of reality. The latest story is that AP's icopyright service shows that the Drudge Retort case is all part of a sinister plot by the AP to charge bloggers several dollars per word to quote an AP story. Of course, the buttons and functionality of AP's icopyright are intended for business users having nothing to do with bloggers such as selling reprint permissions to corporate clients (a common practice) but that's not stopped reports that the updated reason for my meeting with AP is to find a new way of sharing AP content, which now involves a fee per excerpt based on its word length.