ACSBlog: The Blog of the American Constitution Society

by Christopher Sprigman, associate professor of law, the University of Virginia School of Law

If you’re reading this post, chances are good that you know how blogs work – i.e., that they link to, briefly excerpt, and comment about online news articles from established news outlets like The New York Times, The Washington Post and The Associated Press. This symbiosis between blogs and mainstream media outlets is overwhelmingly positive for both sides – the established press provides grist for the blogs’ commentary mill, and in turn the blogs drive traffic to the online offerings of the mainstream news outlets. This traffic is a significant benefit to the traditional press, especially those outlets chained to shrinking dead-tree newspapers. 

Sounds like a nice arrangement. Except that for some reason unfathomable to anyone with a lick of common sense, the Associated Press has decided that the blogs’ “quote and link” practice violates their copyrights. It’s hard to overstate what a senseless move this is for the AP. Nonetheless, it’s also true that unless everyone – the AP and bloggers alike – steps lightly here, copyright law could end up doing a lot of damage to both the blogs and the press. Let me explain . . .

First, a bit of background. Last week the AP sent several cease and desist letters to a left-leaning blog called The Drudge Retort. The AP claimed in its letters that six blog posts and a user comment that linked to, and briefly quoted, AP articles violated both AP’s copyrights and state common law rights against misappropriation of “hot news.” (I’m going to address copyright, and not the state common law claim. The latter, for reasons that are too inside-baseball to deal with here, would be fairly unlikely to succeed. Not so, as we shall see, for the federal copyright claims.) 

Roger Cadenhead, the The Drudge Retort’s owner, removed the material AP objected to, but he didn’t stop there.   He published a post on his personal blog detailing the AP’s demands and pointing out their potentially far-reaching implications for the blogosphere.

As word spread throughout the blogosphere, so did anger at the AP. Numerous bloggers responded to the AP’s copyright threats with threats of their own, including vows not to link to AP stories. The threats prompted a sniffy blog post from Saul Hansell of the New York Times, who complained that “hotheaded” bloggers were failing to deal “constructively” with the AP’s legal threats.

The AP is now sending mixed messages. Jim Kennedy, an Associated Press vice president, has given several interviews where he stated that AP regrets sending the cease and desist letters, is rethinking its copyright policies, and intends to issue guidelines for blogs’ use of AP material. Kennedy has also stated, however, that AP has not formally withdrawn its copyright allegations, and that even small parts of articles, including headlines, are valuable and protected by copyright. How to square these conflicting statements I leave to you. 

Let’s turn to AP’s legal claims. The posts AP complained about used snippets of text from AP articles and provided Web links to the full AP stories. An example is a post entitled “Clinton Expects Race to End Next Week.” The headline itself was written by a blogger posting to the Drudge Retort site. And here’s the excerpt taken from the AP article:

Hillary Rodham Clinton says she expects her marathon Democratic race against Barack Obama to be resolved next week, as superdelegates decide who is the stronger candidate in the fall. "I think that after the final primaries, people are going to start making up their minds," she said. "I think that is the natural progression that one would expect."

This is the sum total of AP’s complaint: 31 words from the story and a 27-word quote by Hillary Clinton under a user-written headline. With all due respect, neither the AP content nor the Clinton quote are exactly Shakespearian – this is workaday reporting of a utterly banal political statement. And it’s difficult to imagine that the AP is hurt by the blog’s quote and link. Indeed, quite the opposite: there is a large and growing number of people who access mainstream journalism via blogs, and if the AP article isn’t blogged, for many of these people it’s invisible. The old-school print journalists at the AP can wring their hands about this all they want, but that’s the reality.

For all these reasons, the AP’s copyright claims are silly. But that doesn’t mean that if the AP were to file a copyright lawsuit, it wouldn’t prevail. Indeed, it well might, for the copyright law is made for the AP, not for bloggers. 

Two quick points should illuminate my point. First, the threshold for liability under U.S. copyright law is very low. The law condemns as infringement any non-de minimus copying of original expression. The AP’s content almost certainly qualifies as “original” – which, in the argot of the copyright law, means merely that the expression was not copied from someone else and that it contains a glimmer of creativity. Once the AP establishes that a blog has copied a substantial piece of protected expression – and the “substantiality” threshold in copyright cases is truly minimal – the AP has made out a prima facie case of infringement. Importantly, the law does not require that the AP prove that it has been harmed in any way – harm is indeed presumed to follow from infringing conduct.

Well, what about fair use? Fair use is a defense, for which the defendant in a copyright infringement lawsuit carries the burden of proof. The copyright statute sets out four factors that are relevant to the fair use analysis, but the results in most fair use cases are very difficult to predict. (For those interested in learning more, the Electronic Frontier Foundation provides a very nice FAQ.) Considering the very high cost of defending a copyright lawsuit in federal court, the enormous potential damages, and the uncertainties of the fair use defense, blogs threatened with copyright suits are more likely to fold than fight.

That said, even if a particularly determined and well-funded blog refuses to back down, there are reasons why the prospects of winning on fair use may be dicey.  First, if a blog realizes revenues from advertising, it will likely to be viewed by a court as making “commercial” use of a plaintiff’s content. Many courts have held commercial uses to be presumptively not fair use. Second, and importantly, a court may find that unauthorized use even of a snippet does indeed harm the plaintiff. Why? Because media companies like AP have established licensing policies that purport to charge fees even for the most trivial use of their content. Take a look at AP’s licensing tariffs, which you can find here. You will notice that the AP demands a licensing fee for any use of 5 words or more from an AP story. No allowance is made for fair use. 

The AP’s licensing policy is an abuse – the copyright law establishes a zone (admittedly indistinct) of fair use, and then the AP acts as if the law doesn’t exist. That said, licensing policies like these are an abuse that often works. The danger is that a court will look at the policy and determine that a licensing market exists for short quotes from AP articles. So how are the blogs hurting the AP? By failing to pay the AP’s tariff. The argument is circular, but courts are too-often willing to indulge this sort of tail-chasing.

So, what can we learn from the AP/Drudge Retort dust-up? Until the AP takes steps to repair its relations with the blogosphere, many bloggers may choose to link to and quote from content from AP’s competitors – most notably, Reuters. That will hurt AP, because AP’s clients won’t be willing to pay as much for AP content if it drives less traffic to their sites. My guess is that cooler heads at AP will realize this, and the Drudge Retort fracas will simmer down.

The episode nonetheless illustrates how out of step the copyright laws are with the everyday practice of blogging, and that a copyright sword hangs over the blogosphere. The AP/Drudge Retort episode is another signal that we need a root-and-branch rethinking of our copyright laws. In particular, we should reform copyright to require that plaintiffs in most cases be required, as an element of their prima facie case in an infringement lawsuit, to prove that they have been harmed. In a stroke, this reform would re-focus copyright on the task it is meant to perform: policing serious threats to the ability of content owners to profit from their work.