The Associated Press, made up of a consortium of newspapers that pay into the organization to license content, committed a material sin against new media last week when it threatened a lawsuit against left-y website The Drudge Retort for copy/pasting headlines and article copy in a manner, at least according to the AP's legal counsel, that did not meet the spirit of Fair Use provisions. Then the blogs got up from their chairs, walked over to the filing cabinet, grabbed their machetes, and began slicing through the AP's reputation blog post by blog post. Smartly, the AP retracted its decision against Retort (though kept alive their cease and desist), and now sits in limbo, weighing its options.

It's already involved in court proceedings against VeriSign-owned Moreover, which basically does the same thing as Retort, but with deeper pockets and wider distribution. But the AP's decision to go after "the little guy" has earned in a number of foes, many of whom insist they're boycotting the service, which, uh, they don't even pay for, so big whoop.

But when it comes to The Drudge Retort, and its owner Rogers Cadenhead, the AP might not have to wait very long. Cadenhead is weighing a countersuit. After all, if the AP's claim is that his use of brief excerpts decreases the market value of its product, it could very well be argued that by posting the snippets, Retort is increasing the demand for those stories.

Cadenhead said that he is now considering asking for a declaratory judgment stating that the posts do not violate The Associated Press's copyright. Stanford Law School's Fair Use Project might represent him in that action; however, as of Monday, he was not a client of the center.

Anthony Falzone, executive director of that project, said the material that had been posted to Drudge Retort did not appear to infringe the wire service's copyright. "The AP's position is rather startling," he said. "They (Drudge Retort) use very small snippets of Associated Press stories to generate discussion on the Web site about the issues. That would seem to be a rather clear fair use."

David Ardia, director of Harvard's Citizen Media Project, agreed. "The Associated Press has picked a bad fight here," he said.

While fair use can vary case by case, Ardia said that one factor that courts look at is whether any particular use decreases the market value of the original. Here, he said, it appears that Drudge Retort's posts are increasing demand for the original stories. "Not only is it not cutting into the market for the Associated Press's articles, but it is actually driving traffic to sites" Ardia said. "That's what's so strange from a legal and policy standpoint." [MP]