The Threat to "Fair Use" in the Blogosphere

UPDATE: I want to apologize to Robert Cox for calling him Roger in this now-fixed story. Also, I want to refer readers to his response, at the end of this post, where he gives more information on the Media Bloggers Association to answer his critics. I just spoke with him on the phone, to apologize for not seeing this link before posting, and for not making an extra call to him to get more information on the MBA.

I got a comment from Ian Lamont, managing editor of The Industry Standard, wondering why we didn’t introduce the concept of “Fair Use” in our story about media companies using content recognition systems to go after bloggers and others that use their material (in particular, the Associated Press). We did flick at the notion, although very obliquely, when we pointed out that such systems could “have a chilling effect on writers concerned they’ll be dragged into court for inadvertently excerpting too large a chunk of material.”

But “Fair Use” does get to the crux of the matter. Essentially, so long as you don’t crib too much of an article and are in fact using the material to make a point—other than to just make money for yourself—it’s legally protected. But Robert Cox, of the Media Bloggers Association, is concerned that the Digital Millenium Copyright Act (DMCA) creates an environment in which this right will be under-utilized.

That's because once a blogger receives a take-down notice, the DMCA requires them to honor it. If the blogger wants to challenge the request, the onus is on them to prove their case. Argues Cox, "the rules are stacked in favor of the copyright holder. For the price of a stamp they can shut down a website, and then the website operator has to spend thousands of dollars or more to assert their free speech right. That’s not balanced, especially since most bloggers aren’t generally trying to steal content and then profit from it (as with some piracy sites for music and videos)."

He's not so concerned about the AP flap, in particular. For starters, AP may have had every right to demand that a site called the Drudge Retort pull down some of its articles--and Cox represented the Drudge Retort in talks with AP. Read the details here. Nor is he that concerned about the big famous blogs. From his perspective, a high-profile debate on free-speech was inevitable once news spread that a media giant as influential as the AP was policing use of its articles in the blogosphere. After all, the AP is a major source of news, and fodder for bloggers.

Rather, Cox is concerned about the thousands of smaller blogs whose legal troubles will never be a big cause celebre. As an example, he cites a client who ran a popular blog in a Western Massachusetts town, but closed up shop after she was sued by a local developer rather than fight it. He says he's also representing a Miami blogger who is facing a $15 million lawsuit, for saying that he'd heard that someone had once filed for bankruptcy. "I can tell you that since I got that [Drudge Retort] case ten days ago, I’ve had a case a day. And none of them are going to get any attention.”

I haven't followed up to check out the examples he told me about. And certainly, Cox himself has become quite a controversial fellow. See here and here. Turns out people far more expert than I on the blogging industry suspect the Media Bloggers Association is not so much an Association as Cox' own private platform for digging up speaking gigs and other business (although Jeff Jarvis is a member of the MBA; see his take on the whole affair here). And surely, Cox does have a commercial interest in this debate, since he's trying to sell legal services to bloggers. Scaring bloggers would help there.

Still, his basic argument is compelling. "I've been trying for the last four years to tell bloggers that there are forces out there that are not sitting still," he says. That includes the adoption of content recognition systems capable of finding out when even an obscure blog uses more of a copyrighted work than the creator approves of, he says. "There’s a notion out there that the copyright rules of the road don't apply for bloggers and microbroadcasters. But one by one, they will find out the hard way.”