Where does copyright end and fair use begin? In the age of the blogosphere, this question is proving to be a difficult and painful one for copyright holders and bloggers to come to an agreement on.
AP claims that although the Drudge Retort did not republish full AP stories, it quoted far too much.
According to AP intellectual property governance coordinator Irene Keselman:
"The use is not fair use simply because the work copied happened to be a news article and that the use is of the headline and the first few sentences only. This is a misunderstanding of the doctrine of 'fair use.' AP considers taking the headline and lead of a story without a proper license to be an infringement of its copyrights."
As David Kravets of Wired observes, "the issue falls into murky legal terrain."
He notes that the Electronic Frontier Foundation warns bloggers that "There are no hard and fast rules for fair use."
This, of course, has not stopped bloggers from throwing their fists up in rage.
Blogger and journalism professor Jeff Jarvis called the takedown notices "truly noxious" while TechCrunch's Michael Arrington pounded his chest and announced that AP stories "don't exist" as far as he's concerned.
While Arrington is correct in noting that the "Drudge Retort is doing nothing different than what Digg, TechMeme, Mixx and dozens of other sites do," it's also not difficult to sympathize with the AP.
The AP has more than 4,000 employees working at more than 240 bureaus in 97 countries.
The AP and news agencies like it are relied upon by thousands of media outlets around the world that serve news to hundreds of millions - if not billions - of people.
When a major event occurs, it's typically journalists employed by agencies like AP who are on the spot first engaging in actual "reporting."
Even if average citizens are increasingly providing media of an event using cell phones and digital cameras, we should not confuse the documentation of an event with journalistic coverage of it.
While it's easy for technology bloggers like Arrington to claim that the AP is simply trying to " protect a dying business model ," the truth of the matter is that he and other bloggers have absolutely no ability whatsoever to provide the sort of coverage that agencies like AP do on topics ranging from politics to sports.
Providing this coverage is not a cheap enterprise and the AP has every right to be concerned about the possible dilution of the value of its content.
While I question whether the AP chose the right target in the Drudge Retort, I think this situation highlights the perception that the value provided by the vast majority of blogs and news aggregation websites is quite questionable.
A significant number of blogs do nothing more than regurgitate the news that is reported by agencies like the AP and a significant number of news aggregation websites do little more than use the aggregation of news as a means to aggregate an audience that can be sold to advertisers.
In other words, bloggers and news aggregation website operators are often quite reliant on the content from news agencies like AP. Without this content, many would have little to no "source material" on which to build their " businesses ".
And we should not pretend that the majority of blogs and news aggregation websites engaged in the use of news agency content aren't "businesses."
The Drudge Retort, for instance, is a member of a "Liberal Blog Advertising Network." According to the ad network website, the Drudge Retort offers 5 ad spots that can be purchased for $650/month/each.
While the $3,250 The Drudge Retort theoretically pulls in each month from this advertising is not going to make anyone rich, it'd be hard to argue that the Drudge Retort isn't, to a certain extent, a commercial enterprise. Yet, of course, it leverages, to a certain extent, content that it doesn't pay for.
Which brings us back to where we began - where does copyright end and fair use begin?
Clearly, the republishing of a full AP story without license is copyright infringement. But how many sentences of a story fall under fair use?
Obviously, there are no easy answers here.
To its credit, the AP has realized that it may have been a little bit too heavy-handed. It now wants to engage in a "conversation" with bloggers in an attempt to come up with usage guidelines that everyone can live with.
Such a "conversation" would be quite worthwhile. Instead of resolving this dilemma through litigation, a resolution through dialog would be far more advantageous to all parties.
After all, the AP wants to protect the value of its content while bloggers should welcome the establishment of clear guidelines where none exist now.
The AP's willingness to talk has created a bit of irony as the New York Times' Saul Hansell points out:
"Mr. Jarvis, in particular, often talks about blogging as a conversation. It seems like the A.P. wants to talk, and many bloggers would prefer a temper tantrum to a discussion."
In other words, a conversation found the blogosphere and the blogosphere, thus far, appears to be refusing to engage in it.
Once again, I would argue that the blogosphere can't have it both ways.
If it wants to establish its role in the world of journalism, playing drama queen isn't going to help.