What If Copyright Law Were Strongly Enforced in the Blogosphere?
posted by Daniel Solove
Suppose the mainstream media, fed up with the buzz bloggers keep getting and with bloggers criticizing their stories, decided to exact revenge. They initiate a vigorous copyright enforcement strategy, launching a barrage of lawsuits against bloggers as the Recording Industry Association of America (RIAA) has done to music file sharers. What would happen?
The blogosphere would be in for some tough times I bet. Bloggers frequently copy large chunks of mainstream media articles and some of us copy pictures we find on the Web. Bloggers don’t have a team of photographers and artists, so they snag images from the Internet. As for mainstream media articles, bloggers often quote very liberally because the mainstream media is notorious for creating dead URLs — articles often just disappear after a week or two. In other instances, articles get archived and can only be retrieved for a fee. The result is that a post discussing a mainstream media article with just a link or a small quote can become hard to understand when the article being referred to becomes unavailable. That’s why bloggers often copy significant portions of articles — so their posts can still be understood when the URLs to the articles go dead.
We bloggers have, to put it mildly, a very robust concept of fair use. Fair use of copyrighted material is a fuzzy concept, and judges use four factors to determine if a use is fair:
1. the purpose and character of your use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken
4. the effect of the use upon the potential market
A Stanford University Libraries copyight and fair use information website has a useful summary of some of the fair use case holdings. Just because a quote is small doesn’t mean that it is fair use. Consider this case:
A television news program copied one minute and 15 seconds from a 72-minute Charlie Chaplin film and used it in a news report about Chaplin’s death. Important factors: The court felt that the portions taken were substantial and part of the “heart” of the film. Roy Export Co. Estab. of Vaduz v. Columbia Broadcasting Sys., Inc. , 672 F.2d 1095, 1100 (2d Cir. 1982)
Certainly not all cases are this radical, but that’s the risk with fair use. It’s a fuzzy doctrine, and many courts are sympathetic to copyright holders. What are the parts of a mainstream media article bloggers are copying? Probably the key parts — the “heart” of them.
I think that it is a fair generalization to say that the use of copyrighted material is much more liberal in the blogosphere than in regular print publications. If I were writing something in print, for example, I would be much more cautious about the extent to which I’m quoting and using images. But I feel more emboldened on the Internet. Why?
The reason is that the blogosphere has developed a set of copyright norms in an area where there is very little enforcement. These norms about the use of copyrighted material are probably at odds with existing copyright law. The mainstream media and other websites have not been going after bloggers for copyright violations all that much. Although the music and movie industries have been on the copyright offensive, beyond them, the enforcement of copyright on the Internet has been rather laid back.
But this article from the WSJ strikes a bit of fear in my bones:
Bloggers, beware: That photo of Tom Cruise and Katie Holmes on your Web site could be fodder for a lawsuit. Stock photography companies like Getty Images Inc. and Corbis Corp. are using high-tech tools to crack down on Web site owners who try to use their photographs without paying for them.
While music and movie studios remain suspicious of the Internet, many stock photography companies have digitized their collections so that customers can easily access them online. At sites like GettyImages.com and Corbis.com, advertisers, publishers and others looking to license professional photographs can browse and purchase millions of high-quality images. In making it easy for customers to find pictures, though, the sites have also made it easier to swipe a copy of an image and post it on the Web.
I avoid taking images from such sites, but it is hard to know the true origins of any image found on the Web. It is often impossible to track down the copyright holder, as the image may appear on a blog or website without information about its origins.
I think that the development of looser copyright norms in the blogosphere is a wonderful thing. Blogging is already quite time-consuming; imagine having to seek permissions for lengthy excerpts or images. And copyright holders might charge fees for the use of their materials, making use cost-prohibitive. Of course, one could play it safe, with very cautious excerpts and no images except copyright-free ones. But this can make posts less complete, less interesting, less snazzy. Having to paraphrase rather than quote directly will take more time, and perhaps make bloggers more reluctant to dash off a post on a particular issue.
I fear that one day copyright enforcement rain on the blogosphere’s parade if mainstream media entities and other mainstream websites see the blogosphere getting too profitable or powerful.
Will this inevitably happen? Will bloggers have to start studying the complexities of the fair use doctrine? Will mainstream media entities adopt an RIAA-style approach? One strategy could involve bringing suits and then offering to settle for a substantial sum, but much less than the cost of fighting the suit. Even if the fair use issue were debatable, it might make sense for the blogger just to settle rather than risk a loss in the case (and much greater damages) and go through the expense of litigating (let alone the extensive time and emotional toll that such litigation might take). A more vigorous copyright enforcement will certainly not kill the blogosphere, but it could change the way people blog. With blogging getting bigger and more profitable every day, will copyright suits become the wave of the future?