The Lost Story Behind The Associated Press and The Drudge ReTort Situation

This is a must read, in depth article about the not well publicized facts behind AP’s go-round with the Drudge ReTort, by the venerable Robert Cox of The Media Bloggers Association… which is, according to their website, a nonpartisan organization dedicated to promoting, protecting and educating its members; supporting the development of “blogging” or “citizen journalism” as a distinct form of media; and helping to extend the power of the press, with all the rights and responsibilities that entails, to every citizen.

I began reading Robert Cox’s blog because the group I help represent, Authors Guild in New York, which fights for Federal and states’ rights for writers, is currently pushing back against negating forces that want the new Federal Shield Law protecting journalists and their sources, to not include protecting bloggers. Detractors say that bloggers are not journalists, or far more slyly, how can you tell if a blogger is a real journo? I have found much rich about all things bright and blogiful here at Robert’s blog WordsInEdgewise, and at Media Blogger’s Association: :

(I took the liberty of capitalizing in the headline above, the T in Drudge ReTort, since I have seen so many articles on blogs and comments this week spelling it as Drudge RePort, the site belonging to Matt Drudge… with some celebrating that Matt is taking a whupping from the big boys. He isnt. It’s the little guy. A different site altogether. Easy error to make when typing fast.)

I do have Mr. Cox’s permission in writing to make my own fair judgment about ‘fair use’ in showing you his article.

Backstory on AP – Drudge Retort Issue
by Robert Cox

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 …

(Read seven more paragraphs of Cox’s poignant analysis on this story here at his blog. And while you’re there, if you’re a blogger, hit ‘Home’ and look at Cox’s article “AP, Bloggers, and Self-Appointed Groups for a look at how bloggers’ matters can sometimes spiral into a vortex.)