The recent DMCA takedown request by the Associated Press and the related issues that have sprung up are being hotly debated in across the blogosphere, but what is mostly being lost in the debate is who should establish best practices guidelines for the Fair Use of Copyrighted Material on Blogs, and how the DMCA should be used in this debate.

Background

For those who haven’t been following, recently the Associated Press filed seven DMCA Takedowns against the Drudge Retort. The posts contained short excerpts of the articles -- ranging in length from 33 to 79 words. In addition, Drudge Retort a community site comparable in function to Digg, Reddit and Mixx where users contribute blog entries of their own authorship and links to interesting news articles on the web. One would think that an organization like the Associated Press would like people to link to their articles as being interesting.

My understanding is that Rogers Cadenhead of The Retort contacted Liza Sabater of Culture Kitchen about the best response, and Liza suggested that Rogers should contact the Media Bloggers Association, which has done great work defending bloggers in legal issues. In addition, the MBA has a long-standing relationship with the AP which might be useful in addressing the legal issues around the specific DMCA Takedown request.

Around the same time, Jeff Jarvis posted FU AP. A few days later, the New York Times ran this article. According to Jim Kennedy, vice president and strategy director of the AP “the company was going to meet with representatives of the Media Bloggers Association” and he hoped “that these discussions can all occur this week so that guidelines can be released soon.”

Kos hops in with this blog post about the fiasco by talking about dumbasses at the Media Bloggers Association and stating that The AP doesn't get to negotiate copyright law.

Cory Doctorow joins in by asking Who are the "Media Bloggers Association" and what gives them to right to negotiate copyright with the Associated Press?.

What both Kos and Cory miss are that the MBA is not negotiating copyright with the AP. Instead, the MBA is representing a blogger in a particular legal battle. Robert Cox, current head of the MBA posts his version of the back story on the Media Bloggers Association website.

Mary Hodder explains to Cory Doctorow a little bit about who the Media Bloggers Association is. Founding members included Jeff Jarvis, Jay Rosen, Rebecca MacKinnon and Micah Sifry.

Where do we go from here?

All of this seems to stem from a few key issues. First, how do we understand ‘Fair Use’? The Center for Social Media at American University’s School of Communications created a Documentary Filmmakers’ Statement of Best Practices in Fair Use.

Who is going to create such a statement for bloggers, citizen journalists and other users of online digital media? Perhaps the Associated Press, the Media Bloggers Association, Cory Doctorow, Kos, and members of many other organizations should work together to establish a statement of best practices that all the parties involved could come to basic agreement on.

Of course, this does not mean that there won’t be future conflicts. What is also needed is a way to address these conflicts in a more productive manner than filing DMCA takedown notices. There are lots of complaints about the DMCA, most notably the lack of due process in takedown notices. Many people are calling for revisions or repeal of the DMCA. Whatever happens, we would all be better off if organizations like the Associated Press and those that they are going after had better mechanisms resolving issues about what constitutes Fair Use for those areas not covered by a statement of best practices or where there is some disagreement about the best practices.

So, who is interested in working on addressing the bigger issues?