Debate Heats Up Over ‘Fair Use’ in the Blogosphere

The recent tiff between the Associated Press (AP) and the Drudge Report has highlighted the lack of clarity of copyright law as it pertains to the blogging world. Last week, the AP issued seven takedown notices to Rogers Cadenhead, the creator of the Drudge Retort, who describes the web forum as a community site similar to Digg and Reddit, with 8,500 users.

The takedown requests were made under the Digital Millennium Copyright Act (DMCA), with the AP arguing that six blog posts and one comment on the Drudge Retort site quoted full sentences and, in some cases, reprinted headlines from AP articles. According to Wired, Cadenhead has said he is concerned that challenging the AP claims could set a harmful precedent:

"If AP were to go after some small fish and get a ruling that running two sentences of stories was copyright infringement, that would have a chilling impact across the net,” he said. “The law lacks a bright line.”

Cadenhead makes an important point, considering how influential the role of the blogosphere in news reporting and politics has become.

David Ardia makes the case that the blog entries in question may not even represent an infringement of the DMCA. He points out that:

1. A few of the posts seem to provide commentary on the news items copied, which generally falls under fair use.

2. Every post in contention uses fewer than 80 words from the original AP articles.

3. When considering fair use claims, courts are most concerned with whether the reprinting weakens the market for the original work and it seems unlikely that excerpts of less than 80 could do such harm—if anything, the posts about the news items may lead even more readers to the AP articles.

The AP, however, appears to be backing off, perhaps also realizing the magnitude of the potential consequences of its requests. The news organization has announced plans to set guidelines for Web users on legal reproduction of AP materials. For more responses to this situation, click here.