Associated Press v. Drudge Retort [1]

On June 10, 2008, the Associated Press ("AP") sent a takedown request [2] under the Digital Millennium Copyright Act [3] to Rogers Cadenhead, the founder of Drudge Retort [4], a liberal alternative to (and parody of) the well-known Drudge Report [5], demanding that he remove six user-submitted blog entries and one user comment on the site that contained quotations from AP articles.  

The Drudge Retort is a community site similar to Digg [6] and Reddit [7], allowing its users to contribute blog entries, comments, and links to interesting news articles. According to Cadenhead, none of the six posts republished the full text of an AP story; instead, each contained quotes ranging in length from 33 to 79 words (although the posts have been removed, Cadenhead has provided a summary of them here [8]).

While the June 10, 2008 takedown request from AP only mentions copyright infringement as a justification for the removal, a June 3 letter [9] sent by AP's Intellectual Property Governance Coordinator, Irene Keselman, also asserted a "hot news" misappropriation claim:

Please note that contrary to your assertion, AP considers that the Drudge Retort users' use of AP content does not fall within the parameters of fair use. 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 lede of a story without a proper license to be an infringement of its copyrights, and additionally constitutes "hot news" misappropriation.

It doesn't appear that AP is continuing to pursue a "hot news" misappropriation claim against Drudge Retort.  This little known legal doctrine, which saw its genesis in 1918 in International News Service v. Associated Press [10], 248 U.S. 215 (1918), seems to have fallen out of favor because the 1976 Copyright Act preempts all legal and equitable rights that are equivalent to the exclusive rights offered by federal copyright law. As a result, in National Basketball Ass'n v. Motorola [11], 105 F.3d 841, 844 (1997), one of the few cases to address a "hot news" claim, the Second Circuit set an exceptionally high standard for such claims to be viable, requiring, among other things, that the information be time-sensitive; the defendant be in direct competition with the plaintiff; and the continued publishing of the "hot news" would so reduce the plaintiff's incentive to produce the product or service that its existence or quality would be substantially threatened.

On June 16, 2008, the New York Times [12] reported that AP was reconsidering its request while it creates a set of guidelines for bloggers and websites that excerpt AP material.

Update:

On June 20, 2008, Cadenhead [13] and AP [14] announced that they had settled their copyright dispute.  As of June 23, the six posts remain inaccessible.