• by Wendy Davis  @wendyndavis, June 17, 2008

The owner of the left-wing site Drudge Retort said Monday he is considering going to court to challenge a claim by The Associated Press that posting short excerpts of wire service stories violates its copyright.

Rogers Cadenhead late last week removed seven stories from the social news site he operates, Drudge Retort, in response to takedown notices from the Associated Press.

But Cadenhead said Monday that he believes they made fair use of the news organization's material. "While the stories have been taken down, it's our contention that they shouldn't have been taken down," he said. The posts excerpted only one or two sentences of Associated Press articles and contained links to the originals.

The site was launched by Cadenhead around 10 years ago as a parody site to the conservative Drudge Report. Around 5 years ago, it became a social news site, where members can post links and comments.

Cadenhead said that he is now considering asking for a declaratory judgment stating that the posts do not violate The Associated Press's copyright. Stanford Law School's Fair Use Project might represent him in that action; however, as of Monday, he was not a client of the center.

Anthony Falzone, executive director of that project, said the material that had been posted to Drudge Retort did not appear to infringe the wire service's copyright. "The AP's position is rather startling," he said. "They (Drudge Retort) use very small snippets of Associated Press stories to generate discussion on the Web site about the issues. That would seem to be a rather clear fair use."

David Ardia, director of Harvard's Citizen Media Project, agreed. "The Associated Press has picked a bad fight here," he said.

While fair use can vary case by case, Ardia said that one factor that courts look at is whether any particular use decreases the market value of the original. Here, he said, it appears that Drudge Retort's posts are increasing demand for the original stories. "Not only is it not cutting into the market for the Associated Press's articles, but it is actually driving traffic to sites" Ardia said. "That's what's so strange from a legal and policy standpoint."

Michael Kwun, a lawyer with the digital rights group Electronic Frontier Foundation, added that facts are not copyrightable. "When you have a factual report in a news story, the copyright in that is often said to be thin because it's factual," Kwun said.

The Associated Press has said it intends to meet with bloggers and develop standards for what constitutes a fair use of news stories. But some observers have panned that proposal, arguing that a content owner can't make that decision.

Ardia added that the publicity surrounding the dispute has already spooked some bloggers, who have contacted the Citizen Media Law Project. He said they are afraid that they, too, will end up threatened with takedown notices. "It will have a coercive effect on other bloggers, because of the fear of legal liability," Ardia said. "Other bloggers who don't have an understanding of their fair use rights see this and think, 'I'm going to have to stop all fair uses of Associated Press content on my site.'"

An Associated Press spokesperson said only that the dispute with Cadenhead was "done" and that the organization "is committed to having a productive relationship with bloggers." The spokesperson did not respond to further questions.