BOB GARFIELD:
A few months ago, the Associated Press busted a website called The Drudge Retort, not to be confused with the more famous Drudge Report, for doing what countless websites do, hosting short excerpts from and linking to, stories by the Associated Press.

Though reaction in the blogosphere was fast and furious, Drudge Retort owner Rogers Cadenhead did take down the posts. The AP told him that he could repost them if he made some alterations. Those weren't made public, but he declined.

That was the end of that particular skirmish, but the AP didn't announce any kind of guidelines for use of their material and the battle over copyright and fair use on the Web rages on.

Siva Vaidhyanathan, author of Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity, says mainstream news organizations have largely retreated on this issue.
SIVA VAIDHYANATHAN:
For years there have been sort of little hints that news organizations were going to take some action about this. Back in the beginning of this decade, there were a number of efforts by papers like The New York Times and The L.A. Times to sort of cleanse discussion sites of their content.

But, you know, pretty soon the lawyers for those organizations realized that they were pretty much causing more trouble than it was worth. Cash value of this behavior in an individual sense is not very much.
BOB GARFIELD:
So AP, a juggernaut, takes on a website that, you know, has like 8,500 users. What’s going on here?
SIVA VAIDHYANATHAN:
You know, the AP is, I think, legitimately concerned that its clients, that pick up and pay for AP content, are perhaps being displaced by these news aggregator sites, places where one can go to find a bunch of interesting AP stories. So AP’s lawyers were very interested in making an example out of this guy, carving out policy for how bloggers should actually handle copyrighted material like this.

In this case, AP is sort of standing in for the traditional news industry in general. You know, AP has a stake in the financial health of newspapers in Detroit and Tulsa and Sacramento as well as the health of Yahoo News.
BOB GARFIELD:
The Internet has taken [LAUGHS] a very liberal view of what constitutes fair use. I mean, there is a body of thought that all content wants to be free, which essentially ignores ownership rights of any kind. I'm curious to know what you think a proper balance should be.
SIVA VAIDHYANATHAN:
You know, you pick up just enough to make your point. You pick up enough text to get to the gist of the story to which you’re referring. You pick up the controversial part of a statement that you want to criticize. You make sure to embed it within a larger conversation of commentary. And all of that is classic fair use.

So most bloggers in most situations are actually, whether they know it or not, behaving according to the core principles of fair use. And that’s because fair use really does ultimately depend on common sense industry standards.
BOB GARFIELD:
I want to ask you about AP’s hard line position. I gather it has softened somewhat since the controversy originally erupted.
SIVA VAIDHYANATHAN:
Late last month, they ended up reaching some sort of agreement through which no one will sue anybody, fortunately, and no one will therefore, you know, be out a ton of money regardless of the settlement.

But also, I think, just as importantly to everybody, no court will decide what is fair use in the blogosphere, and that, you know, that was one of those things that no side could predict the result of, so everyone’s sort of relieved in that sense.

But what’s really interesting is it seems from all that I've read coming out of that agreement, that what AP would really like is for bloggers to refrain from quoting the headline and the first paragraph of AP stories; in other words, that lead paragraph, in sort of Journalism 101 terms, the nut graph.

AP seems to be saying that the basic facts of the story in its simplest possible language are what is valuable of the story. But, in fact, copyright doesn't protect facts or ideas, ever, so you end up in this weird paradoxical situation where AP is trying to protect what is actually least protectable about what it does.
BOB GARFIELD:
This whole issue gets to the odd symbiosis between mainstream media and the blogosphere, because the media needs the blogosphere to create more audience and the blogosphere needs the mainstream media to have the raw material upon which to aggregate, fulminate, bloviate. But in order for that to happen, the raw material has to have a business model attached to it.

Do you believe that the AP really is in jeopardy from the Drudge Retorts of the world?
SIVA VAIDHYANATHAN:
We're starting to get a sense, at this point, 10, 12 years into the age of the World Wide Web, that there’s no zero sum here; that, in fact, there are ways that your paid for, ad supported work can echo through the free media spaces and benefit you, and there certainly can be huge leaks in the system that can perhaps detract from revenue you thought you deserved at some point.

But, you know, it’s not simple arithmetic, and we're still sort of feeling our way through it.
BOB GARFIELD:
Okay, Siva. Thank you, as always.

SIVA VAIDHYANATHAN:
Well, thanks for having me on again.
BOB GARFIELD:
Siva Vaidhyanathan is the author of Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity, and a professor of media studies and law at the University of Virginia.