What If the Kindle Succeeds?

The news recently has been full of reports that Amazon's e-book reader, the Kindle, is doing better than expected. Analyst Mark Mahaney from Citibank says Amazon is on track to sell about 380,000 Kindles this year, and says the Kindle "is becoming the iPod of the book world," with sales expected to hit $1 billion by 2010.

For it's part, Amazon remains coy about releasing the actual numbers, so it might be best to take these predictions with a grain of salt — and sales of the Kindle haven't come close to the numbers for the iPod. But Amazon has reported that, of titles carried in both paper and electronic form, the e-books comprise 10% of sales, a percentage that is likely to grow.

Steve Jobs said recently that the whole idea of e-book readers was flawed since "people don't read anymore". But for those of us who do read, the e-book elicits skepticism for different reasons. For us, the look and feel, even the smell, of a physical book is part of the joy of reading. Will anyone actually want to curl up with an electronic device for an evening of literary comfort?

But the success of the Kindle suggests that some people will. And digital books bring some advantages that suggest the trend won't disappear any time soon:

• Ease of access: We have become accustomed to the fact that we can access millions of songs and albums instantaneously online, with a single click. The same is now increasingly possible with books.
• Ease of sharing: Everyone loves to share a good book with friends. Digital books can be shared as easily as sending an email — and you don't need to give up your copy in order to do so! (Publishers may try to restrict copying with DRM copy protection, but as we saw with MP3 files, this strategy will fail.)
• Ease of carrying: A single Kindle device can carry at least 200 books. As the technology improves, you will soon be able to carry a copy of your entire library in your bag (and have a back-up at home), just as you now carry your music collection in your pocket.
• Price: As more people use digital books and as competition increases, the price of digital books will come down, reflecting the real costs of production — no expensive printing, no shipping across country or storing in warehouses.

Skeptics should remember that it wasn't long ago that many predicted that CDs would never replace vinyl, and later that MP3s would never replace CDs. You can still find great record stores that specialize in vinyl, but the trend towards digital music has been steady and unstoppable. And the music industry has paid a huge price for their failure to embrace the new technology. After first ignoring new technologies, they then proceeded to try to sue innovators, restrict users with DRM copy protection and then punish fans with indiscriminate lawsuits, none of which did a thing to stop online sharing of music. Sales are down, illegal filesharing is up, and no one has found a way to unite the industry around monetizing the sharing of digital music (though EFF has suggested a Better Way Forward).

Will the same thing happen to the publishing industry as books become digital? If the trend continues, with better devices promising longer battery life and better screen resolution, digital books will become a force to be reckoned with. Are we doomed to watch the publishing industry run through the same gamut of bad decisions that have plagued the recording industry for the last few years?

Here are some questions the book industry should be asking itself.

[Read the entire post]

Condition or Covenant, and Why Should You Care?

Imagine that you write some code, and offer it to the public under an open source license that requires that if someone distributes modified versions of the code, the modified versions also be open sourced. Now assume someone distributes modified versions of your code, but fails to open source the modified code.

Do you have a claim for breach of contract? Or for copyright infringement? Or both? And why should anyone other than a law professor care?

Copyright law and contract law are very different. The things you need to prove to win a case are different. Copyright law is federal, while contract claims fall under state law, which varies from state to state. Copyright damages will often be more expansive than contract damages. The standards for injunctive relief are different. The prevailing party in a copyright case can seek attorneys' fees, while the general rule in contract cases is that both sides bear their own attorneys' fees.

So it matters whether copyright or contract law applies.

And, truth be told, the hypothetical at the top of this post is not quite so hypothetical; it is very close to the facts in Jacobsen v. Katzer, a case concerning open sourced code from the Java Model Railroad Interface group. Today, the Federal Circuit vacated a district court decision [PDF] that had held that only contract law was implicated by the defendants' alleged breach of the open source license applicable to the JMRI code.

The court concluded that the key question was whether the parts of the agreement the defendants allegedly breached were mere covenants (things the defendants agreed not to do when they accepted the license), or also conditions of the license (things that must be satisfied in order for the defendants to be licensed at all). Because the license at issue went out of its way to state that licensees' obligations were "conditions," the court concluded that if the defendants were in breach, the plaintiff could sue for copyright infringement.

There are a lot of things in this opinion that the open source community should cheer. The opinion notes that open source software "can often be written and debugged faster and at lower cost than if the copyright holder were required to do all of the work independently," and points out that "[t]here are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties." And the court emphatically concluded that "[c]opyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material."

While we're pleased to see a panel of learned judges endorse the legal foundations of the open source software paradigm, the decision may also encourage proprietary software vendors who frequently fill their "end user license agreements" with restrictions that are denominated as "conditions" on the license.

If violating a "condition" in a EULA results in copyright infringement liability, what's to stop a software vendor from imposing conditions that are unrelated to copyright law (e.g. an agreement not to disparage the copyright owner, or to wear pink bunny ears on Tuesdays), or even antithetical to copyright law (e.g. a waiver of fair use rights)?

For a view of the dark side of "conditions" imposed in proprietary software licenses, consider the "thou shalt not run software we don't like" terms that Blizzard imposes on those who purchase World of Warcraft software, terms that recently were upheld in court despite a very astute amicus brief by Public Knowledge.

We're sure to see this issue come up again in future cases, so stay tuned.

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Victory for DVRs in the Cloud

Twenty-four years ago in the Sony Betamax case, the Supreme Court declared that using a VCR to "time-shift" — to record a television program for viewing at a later time — was a fair use. Today, the Second Circuit rejected [PDF] an attempt by the content industry to change the rules of the game if your video recorder is stored "in the cloud" on the Internet.

In March 2006, Cablevision announced that it would be launching a "remote storage" DVR (RS-DVR) system that would operate much like a TiVo, except that the recordings would be stored on hard drives in Cablevision buildings rather than on a box under a consumer's television. A collection of studios and networks sued Cablevision, arguing that RS-DVRs would violate copyright.

Wait, doesn't the Sony Betamax case say that time-shifting is legal? Yes, but that's not what the plaintiffs complained about. Indeed, they carefully avoided attacking what the consumers would be doing. They instead argued that an RS-DVR is different, because Cablevision is making the copy, and that somehow makes all the difference.

Cablevision, supported by EFF and other amici, explained that this was the wrong way to think about things. When a consumer presses the record button on a remote control, it's the consumer who's making the copy, regardless of whether the copy is being stored on a hard drive a few feet away, or in a data center miles away. Although the district court agreed with the plaintiffs, the appellate court today resoundingly sided with Cablevision, EFF, and the other amici that supported Cablevision:

In the case of a VCR, it seems clear . . . that the operator of the VCR, the person who actually presses the button to make the recording, supplies the necessary element of volition, not the person who manufactures, maintains, or, if distinct from the operator, owns the machine. We do not believe that an RS-DVR customer is sufficiently distinguishable from a VCR user to impose liability as a direct infringer on a different party for copies that are made automatically upon that customer’s command.

This is exactly the right result. As we pointed out in our amicus brief, a rule holding Cablevision liable merely because it housed and maintained the servers in this case could imperil a wide variety of innovative business models that rely on the use of remote computing, ranging from examples like Internet-enabled self-service photo processing and printing, to cloud computing services offered by companies like Amazon, Apple and Google.

That's not all there was to cheer in the Cablevision decision. The court also reminded everyone that in order to be a "copy" for purposes of copyright law, a work must be "sufficiently permanent or stable to permit it to be . . . reproduced . . . for a period of more than transitory duration" (here, the court concluded that data in temporary buffers in the Cablevision system that would be overwritten in, at the longest, 1.2 seconds were of transitory duration). In the digital age, where routers and caches often make fleeting copies of bytes in the ordinary course, this was welcome news.

And, finally, the court rejected the plaintiffs' argument that Cablevision was engaging in unauthorized public performances. The way the Cablevision system was designed, every time a consumer decided to record a given show, Cablevision would store a separate copy of that program, and each of those copies could be played back only by the consumer who recorded it. The plaintiffs urged the court to hold that if 1000 copies of the season finale of Desperate Housewives are played back in 1000 households, that's a public performance. The court instead correctly concluded that each of those copies is playable in only one household, which means that we're talking about 1000 private viewings, not a public performance.

Just three years ago, in MGM v. Grokster, the Supreme Court proclaimed that copyright law should "leave breathing room for innovation and vigorous commerce," and today the Second Circuit has done just that.

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Senators Announce New Intellectual Property Enforcement Bill

Last week, members of the Senate Judiciary Committee introduced S. 3325, the "Enforcement of Intellectual Property Rights Act of 2008," a bill that proposes a number of alarming changes to copyright law. The bill is the Senate's gift to big content owners, creating new and powerful tools -- many of which will be paid for by your tax dollars -- for the entertainment industry to go after infringers. But it doesn’t offer a lick of protection for legitimate innovators and technology users that may be buried by the copyright juggernaut.

One of the bill's most disturbing changes would give the Attorney General new powers to sue individuals on behalf of rightsholders like the MPAA and the RIAA. Bill proponents claim that these new powers, which would allow the AG to bring "milder" civil as well as criminal actions, are necessary because some offenses don’t rise to the level of criminal conduct. This justification just doesn’t make sense. If it’s a low-level offense, why should our top cops pursue it? Traditionally, those types of offenses can and will be pursued by the parties who believe they have actually been harmed, namely the copyright owners. The real "problem" may be that some so-called "offenses" can’t be proven beyond a reasonable doubt, the standard for any crime. This new provision would allow the AG to sidestep that high burden of proof -- a burden that gives the average citizen an important measure of protection from the overwhelming power of the government.

The Attorney General of the United States surely has better things to do than serving as muscle for the entertainment industry, especially when that industry is clearly well-capable of enforcing its copyrights on its own.

The bill also seeks to create an Intellectual Property Enforcement Coordinator position in the Executive Office, with an advisory committee consisting of members from various government departments and agencies. Given the extraordinary budget pressures lawmakers now face, it is shocking that they would consider funding a new layer of federal bureaucracy. In fact, the DoJ itself has spoken out against similar Congressional efforts to rearrange its priorities with bureaucratic meddling.

There's more: another provision creates new categories of infringement at the border, suggesting that individuals need the permission of copyright holders to bring copies of music or movies with them overseas or even through the United States. If the bill is passed, something as simple as taking your iPod to Mexico could be considered an infringement of the copyright owners’ distribution right. The bill also proposes to lengthen the list of items that can be impounded as part of a civil copyright infringement suit, while broadening the list of articles that can be seized and destroyed by the government. (Meanwhile, the Anti-Counterfeiting Trade Agreement (ACTA) is being negotiated in secret by a number of countries, pairing this unprecedented public threat with a potentially catastrophic secret one.)

Whether or not you believe the entertainment industry’s claims about the extent of the piracy problem, there is no reason the American taxpayer should be picking up Hollywood’s legal costs while movie studios are celebrating record box office returns and record-breaking single-title revenues.

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Paper Catalog + Computer Database = Patent? Um, No.

Last week, the patent office agreed to reexamine a patent it granted in 1994 on a "Computer-assisted parts sales method." Orion IP (later renamed Clear with Computers) has filed many, many lawsuits asserting infringement of this and related patents by many, many defendants. Although EFF didn't file this request for reexamination, at one time the patent was owned by Firepond, just like one of the patents on our Patent Busting Project's Ten Most Wanted list.

So just what is this wonderful sales method? In a nutshell, the patent claims ownership over the idea of finding out what a customer wants, electronically finding out what you have that matches that customer's needs, electronically collecting information about the stuff you have to offer the customer, and putting that information into a pitch to the customer.

If you're thinking to yourself, "why that's no different than just looking things up in a catalog," you're not alone; while seeking a closely related patent, the very same applicant told the patent office, "The system essentially computerizes a parts book, with the exception that the system adds the unique element of customer benefits." (I tried, and failed, to figure out what the "unique element of customer benefits" refers to.)

Indeed, if you remove the word "electronically," the patent covers exactly what sales people have been doing for customers for ages. Unfortunately for the patent owner (and fortunately for the rest of us), saying "do it with a computer" does not an invention make.

(For those who want to look into this further, the patent being reexamined is Patent No. 5,367,627 and the control number for the reexamination is 90/010,185. And if you're curious what happens next in the reeexamination, take a look at the handy chart that appears as Appendix A to our white paper on improving patent quality via reexaminations.)

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When the Reese's Peanut Butter Cups Principle Doesn't Apply

When I was a kid, it seemed that every third commercial I saw was for Reese's Peanut Butter Cups. In these commercials, a chocoholic would collide with a peanut butter lover, quickly followed by the memorable exchange of "you got peanut butter in my chocolate" and "you got chocolate in my peanut butter." But then something amazing happened. Each of them sampled the combined treats, and their faces lit up with delight as they unexpectedly discovered "two great tastes that taste great together."

The converse is also true: When you combine previously known concepts and the result is utterly mundane, that's not a new invention. Moving peanut butter from glass jars to plastic tubs, for instance; it may be a new combination (peanut butter and plastic, hooray!) but it’s not a novel end product. A year ago, in the case KSR International Co. v. Teleflex Inc., the Supreme Court reminded everyone of just this fact. As the Court explained, "The combination of familiar elements according to known methods is likely to be obvious [and thus unpatentable] when it does no more than yield predictable results." At the time, a lot of people wondered whether this spelled the end for many lame patents that did little more than claim well-known business models recast as novel inventions by requiring that they be done on the Internet.

Less than two weeks after the KSR decision, the Federal Circuit picked up on the Supreme Court's hint in Leapfrog Enterprises, Inc. v. Fisher-Price, Inc. [PDF], invalidating as obvious a patent that simply applied modern electronics to old fashioned devices.

Earlier this month, the Federal Circuit directly applied this principle to the Internet. In Muniauction, Inc. v. Thompson Corporation [PDF], the court invalidated as obvious several claims of a patent describing a particular method of auctioning certain financial instruments on the Internet. These patent claims added nothing new to the prior art except that the patent claims required the use of a web browser, while an earlier system had used a proprietary computer network with specially designed client software.

The Federal Circuit noted that web browsers long predated the patent application's filing in 1998, and indeed that using web browsers in online auctions was well-known at the time. Recalling its prior reasoning in the Leapfrog case, the court concluded that "adapting existing electronic processes to incorporate modern internet and web browser technology" has been obvious for a long time.

The notion that one can obtain a patent on simply doing on the Internet what many did before without the Internet has seemed silly to many for a long time. Thankfully, the Federal Circuit agrees. Anyone want to celebrate with a Reeses?

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U.S. Patent Office Rejects All Ninety-Five NeoMedia Patent Claims

EFF's Patent Busting Project, continues to march forward, this time with more good news about the petition that EFF, in conjunction with Paul Grewal and James Czaja of Day Casebeer Madrid & Batchelder, filed last April seeking reexamination of the NeoMedia bar-code lookup patent. We're happy to report that the United States Patent and Trademark Office (PTO) recently rejected all ninety-five claims [5.3 MB PDF] of the patent.

The PTO agreed to take another look at the patent last October after EFF filed a petition for ex parte reexamination that called to the PTO's attention a wealth of prior art that the PTO had not previously considered and that showed that the NeoMedia patent claims were not novel. After consideration of the prior art EFF submitted, the PTO found that none of the ninety-five claims in the NeoMedia patent should have been allowed.

Now that the PTO has agreed with us that the patent claims weren't novel, NeoMedia is in the difficult position of trying to explain what was so inventive about its ideas, in light of the prior art that EFF highlighted. Alternatively, NeoMedia can try to amend its claims to narrow them, and argue that the narrower claims were non-obvious, even if the original claims weren't.

(By the way, the PTO's rejection is merely the latest bad news for the NeoMedia patent. After the PTO agreed to reexamine the patent, NeoMedia agreed to put on hold its pending litigation against Scanbuy [PDF], in which NeoMedia is alleging of infringement of the bar-code lookup patent, as well as another patent.)

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You Bought It, But You Don't Own It

In a devastating blow to user rights, an Arizona federal court has ruled that consumers can be guilty of copyright infringement if they violate the end user license agreement ("EULA") that comes with the software--even where the so-called "violation" is specifically excluded from copyright liability. Why? Because those protections only apply if you own the software you buy--not if you license it. Stunningly, this means that "cheating" while playing a computer game can expose you to potentially huge statutory damages for copyright infringement.

As we noted back in May, Blizzard Entertainment, the company that makes the hugely popular massively multi-player online role-playing game World of Warcraft, sued Michael Donnelly, the developer of Glider, a program that helps WoW users raise their character level to 70 by "playing" for the user. Blizzard said that because the license agreement forbids using Glider with WoW, Glider users are committing copyright infringement when they load copies of WoW into RAM in order to play the game, and Donnelly is illegally contributing to that infringement.

As Public Knowledge explained in its brief, Blizzard's theory confuses a copyright holder's intellectual property rights in the software it develops with a buyer's rights in the actual copy of the software. An owner of software has a right to copy it if that copy is essential to the customer's use of the software. (See Section 117 of the Copyright Act.) This rule helps balance the rights of the copyright holder to manage and benefit from its expressive work, and the rights of the public to use and build on that work.

Blizzard argued that players aren't owners but merely software licensees, so Section 117 doesn't apply. But the question of whether a user is an owner for purposes of Section 117 depends the substance of the transaction, not just how one party wants to describe it. For example, if you buy the software, keep it on your own computer and don't have to return it when you are done, you probably own it.

Sadly, the court in this case found otherwise. It held that because Blizzard says the software is licensed, and because it imposes restrictions on use (including such standard restrictions as a requirement that a user who transfers her copy of the software to another must delete all copies from her computer). And that means that users who violate the EULA could be on the hook for copyright damages--including statutory damages, which start at $750 and rise to as high as $150,000 per infringed work. Most disappointing, the court gave short shrift to the absurd policy consequences of treating users who violate a contract as copyright infringers. The logical implication of the holding is that any time you buy software, be it film editing software, accounting software, iTunes, Skype, etc., software owners can always use license agreements to prevent you from ever having full control over your software and taking advantage of standard copyright limitations (such as the right to sell your copy [Section 109 of the Copyright Act] or the right to make copies necessary for use of the software [Section 117]). You can buy it, but you can’t own it.

But this decision is not the whole story: this is the third holding on the issue by district courts in the Ninth Circuit in the past three months. Given that the recent decisions vary considerably, it’s likely the appellate court will address the issue in the near term.

There's one bright light on the horizon: the court found that WoW Glider does not violate the DMCA anticircumvention provisions by allowing users to evade "Warden," which scans games players' computers for unauthorized software. The DMCA prohibits the manufacture and sale of technology that allows the circumvention of technological measures that control access to a work. The court correctly held that Warden doesn't "control access" to the WoW software already loaded on a user's computer, and, therefore, WoWGlider doesn't circumvent that access. (Though the court did leave some aspects of the claim open for exploration at trial).

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Tiffany v. eBay: Court Rejects Tiffany's Expansive Trademark Infringement Theories

In a decision that surely will be cited many times in coming years, Judge Richard Sullivan today sided with eBay in his decision [sixty-six page PDF] in the Tiffany v. eBay trademark trial. In so doing, the judge confirmed that trademark law is about consumer protection, not about squelching speech, and also rejected an attempt by Tiffany radically to expand the reach of contributory infringement.

First, the judge squarely rejected Tiffany's direct infringement claim. Tiffany noted that eBay had, for a time, "actively advertised the availability of Tiffany merchandise," both on eBay's own website and using sponsored links on Google and Yahoo!. The judge's reaction was, in a nutshell, "so what?" The judge rightly concluded that there isn't any reasonable way to describe the fact that people are selling Tiffany goods without saying "Tiffany." So long as you don't confuse consumers about the source of goods and/or suggest a mark owner endorses your activity, you're free to use a trademark accurately to describe products made by the trademark owner - here, to describe Tiffany jewelry as, um, "Tiffany jewelry."

But what if consumers are confused in another way, because it isn't Tiffany jewelry? What if it's fake? Tiffany argued that eBay should be held liable for sales of counterfeit Tiffany goods on the eBay site because eBay had been put on notice that such sales were (according to Tiffany) rampant on the site. Leaving aside the question of how extensive the sale of counterfeit goods actually is on eBay (the judge pointed out a number of problems with Tiffany's evidence), generalized notice of infringement - notice that there's "infringement in the air," as opposed to notice of a specific instance of claimed infringement - shouldn't magically shift the burden of policing for counterfeits from Tiffany to eBay. And the evidence showed that eBay quickly takes down listings when Tiffany sends specific notices that the goods being sold are not genuine.

Happily, the judge recognized as much and rejected Tiffany's "infringement in the air" theory. He pointed to a 1946 decision in which Coca-Cola had tried to argue that Snow Crest Beverages should be held liable, under a theory of contributory infringement, for the fact that some bartenders were using its Polar Cola in "rum and Coke" cocktails. "The [1946] court reasoned that if it imputed knowledge to the defendant based on Coca-Cola's blanket demand, the court would be expanding Coca-Cola's property right in its trademark, allowing Coca-Cola to secure a monopoly over the entire mixed drink trade." Judge Sullivan concluded that just as Snow Crest shouldn't be held liable based on generalized notice of what others might be doing with its product, eBay shouldn't be held liable based on generalized notice that some of its users (or even many of its users) were selling counterfeit Tiffany goods on its site:

Significantly, Tiffany has not alleged, nor does the evidence support a conclusion, that all of the Tiffany merchandise sold through eBay is counterfeit. . . . [T]he doctrine of contributory trademark infringement should not be used to require defendants to refuse to provide a product or service to those who merely might infringe the trademark. . . . Were Tiffany to prevail on its argument that generalized statements of infringement were sufficient to impute knowledge to eBay of any and all infringing acts, Tiffany’s rights in its mark would dramatically expand, potentially stifling legitimate sales of Tiffany goods on eBay. . . .

* * *

The Court is not unsympathetic to Tiffany and other rights owners who have invested enormous resources in developing their brands, only to see them illicitly and efficiently exploited by others on the Internet. Nevertheless, the law is clear: it is the trademark owner's burden to police its mark, and companies like eBay cannot be held liable for trademark infringement based solely on their generalized knowledge that trademark infringement might be occurring on their websites.

(Emphasis added.)

This decision sends a clear signal to intermediaries worried about their liability for their users' potentially infringing activity: it is not your job to police all potential infringement on your site. That is a good thing for free speech of all kinds. When platform providers are concerned about being held liable for the alleged misdeeds of their users, their reaction is to remove anything that might be infringing. As a result, wide swaths of creative and lawful conduct are wiped from the Internet, like dolphins caught in a tuna driftnet. We're pleased Judge Sullivan resisted Tiffany's urging to shift its policing burden onto eBay, so that the dolphins can live to swim another day.

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Biting the Hand that Feeds (Traffic to) Them

Last week, the Associated Press sent the Drudge Retort seven DMCA takedown notices, demanding that the site remove excerpts of AP articles ranging from 33 to 79 words that were linked through to authorized copies of the AP stories.

As as business matter, the AP's approach is curious. The AP makes money by licensing its stories to its members. Its members make money by getting people to read their stories. Links that send traffic to AP member sites are a good thing for the AP and its membership.

On the law, the AP's claims are weak. The Copyright Act allows you to make use of copyrighted content without asking for permission if your use is a "fair use." Based on what we've heard about the posts, there are strong arguments favoring fair use on each of the four factors that courts look at when deciding the issue:

• Purpose and character of the use: Drudge Retort posts regularly draw numerous comments, posted on the same web page, from Drudge Retort readers. This transforms the AP's content from (an excerpt from) a news story into a discussion and a debate.

• Nature of the copyrighted work: The AP's stories are compilations of facts, which means that the copyright in those stories is comparatively thin. In a similar situation, the First Circuit Court of Appeals once said this (emphasis added):
  

  Comline's Exhibit 21E, the abstract alleged to have infringed Nikkei's Exhibit 21C, only copies the first paragraph of a six-paragraph article. Comline's abstract copied approximately twenty percent of the material in the article . . . . In the context of articles . . . consisting almost entirely of Nikkei's reporting of unprotected facts, we conclude that this one-paragraph abstract of a six-paragraph article is not substantially similar to the Nikkei article in a quantitative sense.

• The amount and substantiality of the portion used: The excerpts, from the descriptions we've heard, don't sound very substantial. Indeed, in one instance, most of the excerpt quoted Hillary Clinton. We hope the AP doesn't imagine it owns the rights to Clinton's words alone.
• Market harm: The posts linked directly to authorized copies of the AP stories. It's hard to see where there could be any market harm here.

If the AP were right, that would sharply limit a practice widely used throughout the blogosphere to help spread information and promote public discussion. Many of those bloggers have worked as reporters, so you'd think they'd be well attuned to the issues here. If copyright means what the AP seems to thinks it means (which seems questionable), maybe the problem is with the law, not the bloggers.

But although we think it appropriate to chastise the AP for playing the copyright card so quickly, we also give them kudos for admitting that there may be a better approach. When their takedown notices drew the ire of the Internet, the AP had second thoughts. Speaking with a New York Times reporter, AP vice president Jim Kennedy admitted that the DMCA notices were "heavy-handed" and said that the AP would be rethinking its policies. According to Kennedy, "We are not trying to sue bloggers. That would be the rough equivalent of suing grandma and the kids for stealing music. That is not what we are trying to do."

We're glad the AP is willing to reconsider its position, and look forward to seeing what they come up with this time around. We can't resist saying, however, that we hope the new policy won't look like the current policy (which apparently pre-dates the Drudge Retort situation) in which the AP asks for $12.50 ($7.50 if you're a non-profit - what a steal!) to use a five word excerpt.

P.S. Our own suggestions for bloggers can be found in our Legal Guide for Bloggers.

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