Easy Cases Make Boring Law

I’m going to disagree with co-blogger Tom Bell’s prediction that a decision by the Times to charge for content would trigger the blogosphere apocalypse. As I understand it, the right to quote excerpts from copyrighted material has been firmly established in law for decades. So much so that the Times probably wouldn’t waste time trying to get it overturned. In particular, it’s clearly legal to quote relatively brief snippets of a copyrighted source, and clearly illegal to reprint entire works without the permission of the copyright holder.

I don’t know where the exact line lies, but I don’t think it matters too much. Legitimate bloggers engaged in genuine criticism won’t need to excerpt entire articles, and the Times which knows this sort of law better than anyone, likely won’t waste their time on them. Indeed, I think the law is so clear on this issue that the judge would probably dismiss it almost immediately. Unless there’s some novel aspect to this that makes it different from the print realm, a single EFF or ACLU lawyer who knows how to write a motion to dismiss would probably be sufficient to keep the Times at bay indefinitely.

On the other hand, bloggers who excerpt entire articles are clearly stealing content from the Times and hence will likely get sued. But it’s hard to see how that’s a bad thing– the blogger in question can either shorten the quote to an excerpt, or remove it entirely. Here, it’s unlikely that any blogger will be stupid enough to try to defend blatant copyright infringement.

I’m a little puzzled about the supposed great temptation to excerpt. Yes, I like getting traffic to my blog, and so I’ll post things that I think will get me readers. But the benefits of increased traffic aren’t so substantial that it would be worth breaking the law and risking the wrath of Times lawyers. Given that the Times is available on newsstands around the country, the market value of any given article is pretty trivial. And certainly being known as the guy who steals New York Times content won’t make me famous or popular.

So personally, I think the Times will be shooting itself in the foot if it starts charging for content, but I don’t think its decision to do so will have any particular impact on the future of blogging, copyright law, or the fair use doctrine.

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