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Earlier this month, the Associated Press filed seven Digital Millennium Copyright Act takedown requests against the “Drudge Retort.” The “Drudge Retort” (not to be confused with the “Drudge Report”) is a social news sharing site with about 8,500 users. These users can contribute their own blog entries and link to news articles on the Web. In its takedown requests, the AP claims that certain posts containing excerpts of AP stories and links to those stories violate its copyrights. Copyright protection under the U.S. Copyright Act extends to original works of authorship fixed in any tangible medium of expression. According to the U.S. Copyright Office, this protection is limited to “the particular way an author has expressed himself;” it does not protect “ideas, systems, or factual information conveyed in the work.” See http://www.copyright.gov/fls/fl102.html. There are several exceptions to the protections afforded to a copyright holder. One of the most significant and controversial exceptions is for “fair use.” Fair use allows reproduction of a copyrighted work for certain purposes without the permission of its owner. This exception started as a judicially created doctrine but is now codified in the U.S Copyright Act. Uses which are considered fair under the act include criticism, comment, news reporting, teaching, scholarship and research. Unfortunately, distinguishing copyright infringement and fair use is not an easy task. The act requires that four factors be considered: the purpose of the use, i.e., commercial or nonprofit; the nature of the work; the amount of the work used; and the effect of the use on the potential market or value for the work. Basically, uses must be evaluated on a case-by-case basis. Rogers Cadenhead, who runs the “Drudge Retort,” was first contacted by the AP in April regarding several posts that contained AP headlines and articles in their entirety. No one disputed that these posts violated the AP’s copyrights. However, the AP sent another set of takedown requests to Cadenhead this month. These later posts did not contain verbatim AP headlines and stories. Cadenhead believed that the majority of these posts were within the fair use exception. See http://www.mediabloggers.org/robert-cox/backstory-on-ap-drudge-retort-issue. Cadenhead notified readers and fellow bloggers about the demands in a post on his own blog. He stated that the posts contained only short excerpts of the articles and that all but one contained user-created headlines. He explained that linking to news stories has become a widely used method for people to read and evaluate the news. The excerpts of the linked articles are used to facilitate discussion on blogs and other sites. See http://www.cadenhead.org/workbench/news/3368/ap-files-7-dmca-takedowns-against-drudge. News of the AP’s requests spread quickly and many prominent bloggers were outraged. Jeff Jarvis stated that the AP is declaring war on bloggers. See http://www.buzzmachine.com/2008/06/12/fu-ap/. Cernig from “Newshoggers” believes that the AP is trying to “bully” bloggers who can’t afford the legal costs of challenging the requests. To strike back, he vowed to link to other sources (such as Reuters) on his blog and urged other bloggers to do the same. See http://www.newshoggers.com/blog/2008/06/fair-use-and-th.html. A Web site called the “Unassociated Press” was created to promote the boycott of the AP. The Web site encourages users to sign a petition which states that “[w]e believe the attempts to institute fees for excerpting contextual quotes of as few as six words, and any related attempts to coerce such a fundamental change through legal threat or intimidation, are in direct defiance of the spirit of quoting, linking, commenting, excerpting and other forms of free speech that have become part of the tradition of blogging and editorializing online.” In some respects, the takedown requests appear to be similar to “strategic lawsuits against public participation,” or “SLAPP.” A SLAPP is a lawsuit used to silence or intimidate critics by burdening them with the cost of a legal defense so that they abandon their criticism. Bloggers faced with a takedown request have to do more then just defend themselves against suits; they bear the burden of proof. In Campbell v. Acuff-Rose Music Inc., the U.S. Supreme Court determined that fair use is an affirmative defense to copyright infringement. This means that bloggers bear the burden of proving that reproduction of copyrighted material is fair use and not infringement. Moreover, the takedown request process under the Digital Millennium Copyright Act weighs heavily in favor of copyright owners. Under the act, upon receiving a takedown request, a Web host must immediately remove the content. If the Web host disagrees with the request, it can file a counterclaim with the court, but the content can only be restored after a judge rules in favor of the Web host. Thus, a copyright owner only has to mail a request to get content removed, but a blogger has to go to court (and bear the burden of proof) to have it restored. See http://www.mediabloggers.org/robert-cox/back-story-ap-and-drudge-retort-come-to-terms. The Media Bloggers Association (MBA) provided legal support to the “Drudge Retort” and was part of the discussions with the AP. Possibly initially underestimating the reaction in the blogosphere, the AP has now backed off its initial stance and admitted that its requests were heavy-handed. Robert Cox of the MBA stated that the AP acknowledged that excerpting and linking is “generally acceptable.” However, the AP claims that a post that contains a verbatim AP headline of a story and the lede paragraph does not fall within the fair use exception. Despite a difference of opinions on this point, both parties now consider the matter closed. See http://www.mediabloggers.org/robert-cox/back-story-ap-and-drudge-retort-come-to-terms. The dispute between the AP and the “Drudge Retort” may be over, but the boundaries between fair use and copyright violations are explored every day in the interaction between blogs and the traditional media. The use of blogs has rapidly expanded over the last few years, drastically altering the way that millions of people get the news. As is often the case, it takes time for the law to catch up with changes in technology. There is no question that protection of copyrights is essential; we can only hope that the enforcement of these rights does not stifle what has become a unique forum for discussion and sharing information. • Jeremy Heinnickel and Luke E. Debevec are attorneys at Reed Smith in Philadelphia, where their practices are concentrated on insurance recovery, exclusively on behalf of policyholders. The opinions expressed are not those of Reed Smith or its clients. A Web site called the ‘Unassociated Press’ was created to promote the boycott of the AP. Jeremy Heinnickel and Luke E. Debevec are attorneys at Reed Smith in Philadelphia, where their practices are concentrated on insurance recovery, exclusively on behalf of policyholders. The opinions expressed are not those of Reed Smith or its clients.

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