EXCLUSIVE : Robert Cox answers some questions about his coming meeting with AP

Yesterday was intense day that I think was made worse by an article written by Scott Hansell over at The New York Times. Not only did he describe bloggers as "free wheeling", but Hansell made it look like the boycott started by netroots bloggers that spread through the blogosphere was going to be over once the Associated Press had discussions "with representatives of the Media Bloggers Association" that would produce "guidelines" to impose on bloggers.

We don’t want to cast a pall over the blogosphere by being heavy-handed, so we have to figure out a better and more positive way to do this,” Mr. Kennedy said.

Mr. Kennedy said the company was going to meet with representatives of the Media Bloggers Association, a trade group, and others. He said he hopes that these discussions can all occur this week so that guidelines can be released soon.

Still, Mr. Kennedy said that the organization has not withdrawn its request that Drudge Retort remove the seven items. And he said that he still believes that it is more appropriate for blogs to use short summaries of A.P. articles rather than direct quotations, even short ones.

“Cutting and pasting a lot of content into a blog is not what we want to see,” he said. “It is more consistent with the spirit of the Internet to link to content so people can read the whole thing in context.”

Even if The A.P. sets standards, bloggers could choose to use more content than its standards permit, and then The A.P. would have to decide whether to take legal action against them.

The last paragraph is not only the other (after the free wheeling adjective) offending point of this article. It gets picked up by none other than The Associate Press, which goes on to "report" (and here I am breaking to boycott in order to fisk them)

NEW YORK - The Associated Press, following criticism from bloggers over an AP assertion of copyright, plans to meet this week with a bloggers' group to help form guidelines under which AP news stories could be quoted online.

Jim Kennedy, the AP's director of strategic planning, said Monday that he planned to meet Thursday with Robert Cox, president of the Media Bloggers Association, as part of an effort to create standards for online use of AP stories by bloggers that would protect AP content without discouraging bloggers from legitimately quoting from it.

The meeting comes after AP sent a legal notice last week to Rogers Cadenhead, the author of a blog called the Drudge Retort, a news community site whose name is a parody of the prominent blog the Drudge Report.

The notice called for the blog to remove several postings that AP believed was an improper use of its stories. Other bloggers subsequently lambasted AP for going after a small blogger whom they thought appeared to be engaging in a legally permissible and widely practiced activity protected under "fair use" provisions of copyright law.

In response, the AP indicated it would seek to create guidelines, though even that idea triggered further protests. Michael Arrington wrote on his TechCrunch blog Monday that AP "doesn't get to make its own rules about how its content is used, if those rules are stricter than the law allows."
FULL ARTICLE AND SOURCE

It is outrageous that the AP, with the help of one of it's members (The New York Times), is spinning this Thursday as some sort of workshop that they will use, with the help of the Media Bloggers Association, to tell bloggers what is Fair Use.

And it is what I was twittering about with Jay Rosen last night. Jay and I reckoned there was what it seemed a "diffusing" element to the way the news were being report from Hansell down. He picked up on it as "the journalists' attempt to calm things down". I described as "there's an interesting diffusing dynamic going on, starting @ NYT" that had been preceded by the following twitts :

blogdiva: @jayrosen_nyu what a lot of your media peeps fail to mention is that no matter what AP says about use of their content there'll be a boycott
about 10 hours later · Reply · View Tweet

blogdiva: @jayrosen_nyu the boycott is not going to end after Ap meets the MBA because the issue here is that they don't get to say what is fair use
less than a minute later · Reply · View Tweet

It wasn't until after I spoke with Robert Cox that it hit me : Yes, indeed, people are reading these as "appeasement" quotes from AP. It does look like the article are meant to diffuse the issue and they're doing so by using Robert Cox's meeting as part of their damage control.

We will deal here with the first part of the discussion which is about Rogers' C&D, the agreement he brokered with the AP and the Thursday meeting. The second part, which is about the reorganization of the Media Bloggers Association and how to become a member will be posted separately.

The first thing I did this morning was to ping Robert and find out from him what the hell this meeting was all about. I pinged Bob at 8:20 and we didn't end the chat until 10am. I wanted to know why he was meeting the AP as in what where they putting on the table.

[...]
Ms. Liza Sabater: so, are you the only meeting with AP?
Ms. Liza Sabater: only one from MBA
08:35
Robert Cox: Am I meeting with AP alone?
Ms. Liza Sabater: right, are you the only rep for MBA meeting AP
Ms. Liza Sabater: also, who from AP is meeting you? and ...
Ms. Liza Sabater: have they set an agenda for the meeting?
Ms. Liza Sabater: these questions are coming from this article : http://news.yahoo.com/s/ap/20080617/ap_on_hi_te/ap_bloggers;_ylt=AirXxVC...
Robert Cox: let me back up for a moment
08:40
Robert Cox: the basis for your questions are from what Saul [Hansell] reported
in the NY Times
[...]
Robert Cox: his take on the matter has now informed almost ALL of the
reporting - even from AP
[...]
Robert Cox: I spoke to Saul as did Rogers and Jim Kennedy
[...]
Robert Cox: while saul's reporting is not WRONG per se
Robert Cox: the way he described what he was told made it sound as if I was
Kissinger going to the Paris Peace Talks
Ms. Liza Sabater: LOL!
Robert Cox: that is a mischaracterization
Ms. Liza Sabater: can i so fucking quote that!
Ms. Liza Sabater: sorry, that's really funny

I can see myself interviewing Barack Obama and blurting, "CAN I SO FUCKING QUOTE YOU!" Yeah. That would be me.

[...]
Robert Cox: the reality is more prosaic
Robert Cox: As you know (since you were the source) Rogers was referred to
me
Robert Cox: As we have done in hundreds of cases over the past 4 years we
agreed to provide Rogers with whatever assistance we could
Robert Cox: you know how we work because you have your own experience
Robert Cox: in this case the MBA has a prior history (a good one) with AP
Robert Cox: AP syndicated out MBA members coverage of the Libby trial
Robert Cox: so not only did I reach out to get legal support for Rogers but I
offered to call directly to AP and see if we could work things out on a
more amicable basis
08:45
Robert Cox: Rogers agreed to my doing that and so I called over there and
that led to discussins with Jim Kennedy
Robert Cox: this gets us up to the point where Saul wrote his storu
Ms. Liza Sabater: got it
Robert Cox: in the call with Jim my first concern was Rogers
Robert Cox: I wanted them to agree to stop pursuing him further, they had
already moved in that direction internally, and so I was able to go back to
Rogers at the end of last week to tell him he could breathe easier, that no
more shoes would be dropping
Robert Cox: While that was welcome, there was still the matter of the 7
outstanding items in the most recent Take Down Notice. I pointed out to
AP that the crux of the problem is that AP has never articulated what
exactly it wants from bloggers.
Robert Cox: AP agrees that bloggers are a vital part of the new media
landscape and they recognize the right of bloggers to link and excerpt. At
the same time they engage in legal threats against people like Rogers
which seem, in our view, to be unwarranted.
Robert Cox: I then proposed that we meet to discuss the 7 outstanding items
to see if we can resolve those issues without the need for us to file
counter-claims in federal court (something we are fully prepared to do if
Rogers wishes it). AP agreed to that and a meeting was set up with our
lawyers and their lawyers.
Ms. Liza Sabater: but didn't they get Rogers to take down the quotes?
[...]
Robert Cox: Rogers did take down the 7 items
Robert Cox: he had no choice under DMCA
Robert Cox: the purpose of my call last week to AP was...
Robert Cox: A) get them to agree to NOT make any MORE threats
Robert Cox: to set up a meeting to discuss the 7 items so that it would not
be necessary for Rogers to file a counter-claim underDMCA (in federal court)
[...]
Robert Cox: are we clear - as of Friday the DMCA take down notice from June
10 was still OPEN
Robert Cox: if Rogers fails to file a counter claim by June 20 then he cannot
file one ever
Robert Cox: in other words, under DMCA you get 10 days to respond
Robert Cox: that clock is still ticking
Ms. Liza Sabater: yet doesn't this mean they got what they wanted?
they got Rogers to take down the quotes by enforcing their will
through the DMCA?
Robert Cox: what I proposed then was to meet within the 10 days counter
claim period
Robert Cox: they got what they want SO FAR
Ms. Liza Sabater: ok
Robert Cox: but Rogers can still file a counter claim
Robert Cox: if he does file such a coutner claim that the matter goes to
federal court
Robert Cox: that is slow, expensive, messy and may not result in a win
08:55
Robert Cox: we want fast, cheap, clean and a win
Ms. Liza Sabater: that's what he said and gave as the reason for not
counter-claiming

Rogers explains his reluctance in a blog post, AP Rethinking Policy After Drudge Retort DMCA Takedowns.

Robert Cox: well he may or may not file a counter claim
Robert Cox: he does not have to make a final decision until June 20
Robert Cox: hence
Robert Cox: my desire to meet with AP before the 20th
[...]
Robert Cox: so as of last week AP agreed to meet with me and Ron Coleman,
our general counsel who you may have dealt with in the past
Ms. Liza Sabater: yes
Robert Cox: at that point the call was positive and friendly
Robert Cox: so I took the opportunity to make a few other points
Robert Cox: and this is the part of the conversation that Saul, in my view,
mischaracterized a bit
Robert Cox: his mischaracterization then spun out into gross exaggeration
[...]
Robert Cox: the problem is that he did not make the point that I made above
which is the focus of the call last week and the meeting this week is to
resolve rogers issue
Robert Cox: our focus is on protecting the blogger
Robert Cox: if we can then advance some larger agenda fine
Ms. Liza Sabater: got it
Robert Cox: but we are NOT going to focus on the larger agenda while
throwing rogers under the bus

I bolded this last statement because it is the heart of the MBA's involvement in this case. No two copyright cases are alike and so it is important that if they are to provide any advice, legal or otherwise, they need to do so on a case-by-case basis.

So the MBAs focus has to stay on the blogger at all times.

Ms. Liza Sabater: so give me a minute to parse all this out
09:00
Robert Cox: happily the two are related because Rogers is a good guy, who
wants to do the right thing and is actually more concerned about bringing
about an outcome that helps bloggers that come after him
Ms. Liza Sabater: we could say the DMCA forces you to take care of
the immediate legal needs of the blogger, in this case Rogers
Robert Cox: the DMCA has a very specific protocol
Ms. Liza Sabater: under the DMCA there is only a 10 window of
opportunity to work things out
Ms. Liza Sabater: 10 day
Robert Cox: the recepient of a take down notice has legal protections
Robert Cox: but they do not get them unless they FIRST comply with the take
down notice
Robert Cox: it is a minuet, right?
Robert Cox: AP sends take down notice
Robert Cox: Rogers gets notice, takes down posts described in notice
Ms. Liza Sabater: yet, it's not 30 or 90 days, 10 days is by a lot of
standards a short amount of time to mull if you're going to sue a
copyright holder
Robert Cox: Rogers files counter claim
Robert Cox: court sets a data and they make their case to a judge
Robert Cox: well the VAST majority of DMCA cases are cut and dried
Robert Cox: if you have 10,000 mp3s on a public server and 1,000,000
downloads via Limewire
Robert Cox: your web host is not going to think twice about shutting you
down if they get a take down notice
Robert Cox: u should know that the DMCA was originated by the recording
industry to deal with napster
Ms. Liza Sabater: I do know that
Robert Cox: ok
Ms. Liza Sabater: but
Ms. Liza Sabater: most of the cases i have been involved with
Ms. Liza Sabater: have had to do with text or images
Ms. Liza Sabater: text or images that are either commented or
parodied.
09:05
Ms. Liza Sabater: this is something that was completely railroaded
when the DMCA passed and it was the reason why it was
considered a threat to free speech and most particularly to digital
publishers and visual artists
Ms. Liza Sabater: the issue with AP is that it is using the DMCA as if it
were the RIAA
Ms. Liza Sabater: knowing that the quoting and commenting of text is
NOT cut and dried
Ms. Liza Sabater: and that it is one of the grayest areas of copyright
law
Ms. Liza Sabater: it's always been
Ms. Liza Sabater: so for Rogers to have taken down the text is
problematic
Ms. Liza Sabater: because it means they indeed enforced the DMCA as
if text were a sample of an MP3
Ms. Liza Sabater: the AP is becoming the RIAA of text, in effect
Ms. Liza Sabater: that was an unintentional rhyme

And then a bathroom break happened. Yes. I went there.

Ms. Liza Sabater: back
Robert Cox: ok
Robert Cox: ummm let me see
Robert Cox: OK so AP agreed to meet
Robert Cox: NOW
Robert Cox: at that point the call was very positive
Robert Cox: so I made the point to Jim that there was an underlying problem
with this case - that the AP had never sought to make clear to bloggers
what exactly they wanted from bloggers
Robert Cox: On the one hand AP has said and done some nice things with
bloggers like work with us on Libby or partner with Michael Tippet and
NowPublic
Robert Cox: on the other hand they go after people like rogers in a very
aggressive way
Ms. Liza Sabater: and why Rogers and not Digg, you know what I
mean?
Robert Cox: I suggest[ed] to him that AP ought to consider issuing some sort of
articulation of what exactly it expected from bloggers
Robert Cox: bloggers might not agree but at least they would know where AP
was coming from
Robert Cox: and Jim agreed with that sentiment
09:15
Robert Cox: I also told him - and this has not been reported at all - that it
would have been better if AP's lawyers had called the MBA first
Robert Cox: this is a very standard pitch I make to all litigants [against] bloggers
Ms. Liza Sabater: especially if they already had a relationship with MBA
Robert Cox: it is why I speak to bar association
Robert Cox: I would like lawyers to know that the MBA can be a way to reach
out to bloggers without going nuclear out of the box
Robert Cox: we may not solve every problem
Robert Cox: or know every blogger
Robert Cox: but we have a good network and in many cases we will know
someone who knows the bloggers as was the case her[e] with you
Robert Cox: you meaning you liza
Ms. Liza Sabater:
Robert Cox: and they were amenable to that
Robert Cox: so we left it that we would take the opportunity of our meeting
to kick around some ideas on how to sort these issues out
Robert Cox: it was not the major focus of the call
Robert Cox: rogers was
[...]
Ms. Liza Sabater: so in a way, this is as much about getting them to set
internal protocols that would involve the MBA before going
through the take down motions
Ms. Liza Sabater: as much as setting use standards of their content
Robert Cox: this is more about while we are together let's see if we can kick
around some ideas that would reduce the number of legal threats made
against bloggers by AP - and if we can come up with a good approach,
since it is AP, it might serve as a model for others
Ms. Liza Sabater: all of this after taking care of Rogers immediate legal
issues with them
Robert Cox: all of this is after sorting out rogers
Robert Cox: "take care" implies we can definitely resolve the entire issue
Ms. Liza Sabater: got it
09:20
Robert Cox: and we do not dictate to AP
Ms. Liza Sabater: i am used [to] your parsing of specificity
Ms. Liza Sabater: and i appreciate that

This is really important and I'd like to stress this again, the MBA's sole issue is to help out Rogers. If they can get clarification for the larger blogger community, then that's icing on the cake. Yet they have to stay focused on helping Rogers first and foremost.

Robert Cox: they seem amenable to working this out on a positive basis as are we
Robert Cox: but they have their lawyers and we have outs
Robert Cox: how does it go?
Robert Cox: trust but verify
Ms. Liza Sabater: i think so
Ms. Liza Sabater: i know you are extremely averse to lawsuits
Robert Cox: any sane person is adverse to lawsuits
Ms. Liza Sabater: but it seems that would be the immediate way to
"correct" the DMCA
Ms. Liza Sabater: i am for striking it out of the books completely
Robert Cox: the only way to "correct" the DMCA is to go to DC and lobby congress
Ms. Liza Sabater: and starting all over
Ms. Liza Sabater: i was just going to ask your remedy
Robert Cox: well that is another battle for [another] day

So it is now up to the coalition behind unAssociatedPress.net to either sit down with AP or to issue a strong state of rejection of their arbitrary definition of Fair Use.

Ms. Liza Sabater: awesome
Ms. Liza Sabater: well
Ms. Liza Sabater: thanks so much. i'll ping you once i put up the post.
Robert Cox: one sec
Ms. Liza Sabater: sure
Robert Cox: to close the loop on this last point I was making
Ms. Liza Sabater: please do so
Robert Cox: the MBA wants to be of service here
Robert Cox: so given the DMCA as it exists now
Robert Cox: how can we best do that
Robert Cox: it seems to me that everyone could agree that reducing the
number of DMCA threats and simliar threats agsainst bloggers is a good thing
Robert Cox: the goal is, in theory, to reduce the number of cases that are
unresolvable to the lowest possible number
Robert Cox: how do you do that?
09:25
Robert Cox: well sometimes people file DMCA take down notices because
they are mad and just fire away
Robert Cox: sometimes the blogger does do something they should not do
and don't realize it
Robert Cox: what makes filers mad is often that they do not have a good way
to communicate with the blogger
Robert Cox: so let's start be eliminating THOSE sources of trouble
Robert Cox: That is something the MBA can do
Robert Cox: #1) educate bloggers on media law issues
Robert Cox: #2) serve as a conduit for communication between copyright
holders and bloggers (and therefore as a buffer if people are mad)
Robert Cox: #3) help the copyright holder understand blogging as much as
we can; and maybe get the copyright holder to specify which uses they
ARE willing to accept
Robert Cox: and we are already doing these things - and the AP case is a
chance to do more of it
Robert Cox: that it turns into a major blogstorm makes this, perhaps, a
teachable moment in that regard
Robert Cox: there
Robert Cox: I've said my piece
Ms. Liza Sabater: can you go over how to become a member of the
MBA?

And the whole issue of how to become member of the MBA will be posted in a follow up.

So let me backtrack here for a moment because I really want people to focus on why the DMCA is our enemy and why it is so malicious used by corporations with huge legal departments that see a potential profit in suing bloggers --by basically trying to pave the way to extending their obsolete licensing deal into the blogosphere.

Let's look at Sec 1321. Remedy for Infringement in the DMCA :

(2) The owner of a design may seek judicial review under this section if--

`(A) the owner has previously duly filed and prosecuted to final refusal an application in proper form for registration of the design;

`(B) the owner causes a copy of the complaint in the action to be delivered to the Administrator within 10 days after the commencement of the action; and

`(C) the defendant has committed acts in respect to the design which would constitute infringement with respect to a design protected under this chapter.

The AP issues a C&D to a blogger and it basically is akin to putting a gun to their heads. There's only 10 days for the blogger to decide to take the text down or to get their financial and legal ducks in a row and counter-sue the big media company, all in 10 days time. Not 10 working days but 10 "natural" days.

This is why Rogers needed to act quickly. Had he left this slide for a week, he would have been indeed taken to court. Actually AP can refuse to retire the C&D at the end of Thursday (the 9th day after the C&D) and still go ahead and file a lawsuit on Friday afternoon.

That's what bloggers are up against with the DMCA. We are guilty until we raise the millions it would take to prove in a federal court that we are not.

Next : The new improved MBA and why you may want to become a member.

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