Back Story on How AP and Drudge Retort Came to Terms

In what may close one chapter and signal the beginning of another, the AP and Rogers Cadenhead of Drudge Retort have come to resolution on their dispute while leaving unresolved the central source of conflict in the case - whether the verbatim publishing of an AP headline and AP lede are or are not covered under "fair use" doctrine. AP also failed to provide any public guidance on their own position and Rogers is refusing to bail them out by publishing the guidance they gave him last night in resolving his concerns including the post themselves. I cannot see how AP's approach helps them resolves the broader implications of their posture here. It does resolve the matter for Rogers, and therefore me and Ron Coleman, which has been the goal of the MBA all along. So, maybe we can all get some sleep tonight. It's been a long week.

No Meeting

The much anticipated meeting yesterday never happened in at least the sense many bloggers and reporters understood it. Instead there were a flurry of phone calls as well as internal meetings at AP resulting in an outcome that while not a clear win for anyone is also not a loss for anyone either. No "guidelines" were established, no precedents set and no one needs to spend time in court. Most importantly, the MBA was able to help Rogers Cadenhead end up with a solution that was acceptable to him and that has always been our primary concern.

Rogers has the somewhat nebulous AP statement and his own reply: AP Settles Dispute with Drudge Retort

Back Story of the Conclusion

I can't possibly write up every single thing that happened since I published the backstory on the origins of the case but let me bring folks up to date. The crux of the story is this: Wednesday, after a series of long calls, Rogers indicated that his desired outcome was for the AP lawyers to call him and give him "guidance" on what he could do with each of the 10 posts they complained about last week to make them acceptable to AP. Rogers took the position that if AP was reasonable in their guidance, he would be willing to consider minor changes that while not perfectly satisfactory to both sides were close enough that both sides could stand down while the posts themselves went back up. This was, in fact, where I got to in my own situation with The New York Times over my Op-Ed Columnists Corrections page satire where I agreed to put in a small disclaimer but the page itself went back up. I had felt that my page was so clearly satire that such a disclaimer was unnecessary; the Times lawyers did not like my use of their logo and web design. In the end neither side got exactly what they wanted but we were able to live with it and move on.

I then went back to Jim Kennedy and worked out what became the basis for the solution that led Rogers to conclude that he was satisfied with the outcome. After some internal discussions, Jim Kennedy told me yesterday, around 5:30 PM, that AP was willing to go with the proposed solution and have AP lawyers spend as much time as needed going through each post with Rogers until both sides were either satisfied or at an impasse. I called Rogers and walked through what would happen next. A couple of hours later, Rogers called me back to tell me that he had gone through all of the posts with the lawyers and told them he was satisfied but that after thinking about it he was not comfortable with one point that had been raised: AP's position that there was no fair use exception for a post which contained only the verbatim AP headline of a story and the lede paragraph. AP's argument has been that a large percentage of the value of what they deliver is carefully packaged in that content and so the publishing of that information without permission was a copyright violation.

Core Copyright Issue Remains Unresolved

I hope the discussion to follow can focus on this key point because it was our sense last night that this is THE CORE ISSUE because AP did agree that excerpting and linking is generally acceptable which is what most bloggers do - just not the AP headline and lede.

The discussion between Rogers, Ron Coleman and me focused on this point. How to deal with this issue? We kicked around a lot of ideas including the idea of not putting up ANY of the posts, even the ones where there was agreement, as a sort of protest. Or to put up all the posts except those which were headline/lede-only posts. And my personal favorite, refuse to put up any of the posts and put up a new post with only the headline and lede and dare AP to seek to have that taken down. There were a few problems with my last idea, as Ron Coleman pointed out. First, Rogers is not the person who put up the headline/lede-only posts that were the subject of the DMCA Take Down Notice. That was done by members of his community and none of them had shown the slightest interest to engage the AP in this fight. Second, if such a post was put up now, as a test case, an AP pursued the matter and won there would be two bad outcomes - one for Rogers and one for all bloggers.

Why A Test Case on Headline/Lede Copyright Might Be Bad

The bad for Rogers would be that he might be hit with a judgement plus statutory damages plus the AP's attorney's fees (and we expected they would use an expensive law firm). The bad for everyone else is that AP would have established a legal precedent that they were seeking to get by fiat. Ron pointed out that in this area of law it is often better to leave things fuzzy because it gives bloggers a lot more wiggle room. We considered the possibility that AP might conclude they have more to lose if they went to court - firmly establishing the precedent that use of verbatim headlines and verbatim ledes was fair use - and thus might decide to leave Rogers alone. The MBA was fully prepared to put on a full legal defense at no cost to Rogers - and to bring in many of the folks who offered their assistance in this case. Rogers had plenty of his own offers as well. Believe me there was no shortage of legal muscle on this case. We also discussed the idea of creating a legal defense fund in the event of a loss in the case so that Rogers would be made whole. Of course, none of this would compensate him for the time cost which comes with engaging in such a court fight. Ultimately, this was a personal decision for Rogers and his family. We ended the call last night so that Rogers could sleep on it, discuss it with his family in the morning and proceed in a manner that best suited him.

He has now published his decision and we fully support that decision.

Is The AP Right or Wrong? You Make The Call

This still leaves the matter of whether or not the AP is right that the headline/lede copyright is not superseded by the fair use doctrine. According to lawyers I spoke with including Ron last night it appears to be a coin toss. On the one hand you can see their point that if a social news site like Drudge Retort can post all of their headlines and all of their ledes without a license, and the largest chunk of information value is contained in that copy, then they are suffering a financial harm because their actual licensees will have little incentive to pay for information freely available elsewhere. The question is whether that's true. On the other hand there is the reality of the new media landscape, new technology and perhaps the need for a news business model not just for AP but all news gathering organizations. This does not strike me as a small topic, easily resolved.

Jeff Jarvis has summed up the AP's action as an attack on the blogger ethic of the link and the quote. I am not sure that is quite right since AP did not dispute that point in this case and agreed that linking and excerpting as a general matter was permissible. So, no dispute there and so a lot of the clamor over this issue is misdirected. Many have accused the AP of seeking to bully a blogger - any by association all bloggers - by employing a federal law, the Digital Millennium Copyright Act, to achieve a level of copyright protection they do not have under federal copyright law by asserting claims they could not possibly defend in court. That sounds more like it. I personally hate the DMCA having been the victim of its abuse by The New York Times back in 2004. To put in its simplest terms, the law sucks. It give a tremendous advantage to the plaintiff - for the cost of a postage stamp you can shut down a web site - and puts all the burden on the defendant, few of whom have the resources or motivation to mount a legal challenge. If bloggers want to really have a positive impact it would be to pressure Congress to amend or junk this lopsided law so prone to abuse. AP itself admits its actions were heavy-handed. Given the outrage in the blogosphere it is obvious that the AP miscalculated badly here, especially in their belief that the bloggers would have no effective means of responding to their assertions. As the AP now understands, there are ways other than litigation or legal challenges to push back on legal threats and the resulting impact can be more costly than the originally perceived benefit of making the legal threat in the first place.

[I am breaking up the rest of this post into shorter bites]

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