The Threat to "Fair Use" in the Blogosphere

Posted by: Peter Burrows on June 26, 2008

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.”

Reader Comments

Robert Cox

June 27, 2008 11:39 AM

Peter,

I spent an awful lot of time with you on the phone earlier in the week but it seems that it was not enough time to get some basic facts right.

Your main article has my name wrong, could you please get "Roger Cox" changed to "Robert Cox" at least on the web and in the archive. The blogger in Massachusetts was not in "Western Massachusetts". There are some other errors but I don't have time to go through them all. I offered to put you in touch with some of the bloggers referenced in our call but you did not respond to my offer.

You are also repeating a number of false and defamatory claims about me and the MBA and linking to two pieces, one of which has a CORRECTION (BoingBoing), the other of which makes also sorts of paranoid, delusional and false claims about me like claims that I was editing Wikipedia entries under an assumed name and that the MBA was just one person (me) with a made up "group".

Is this what constitutes "good reporting" at Business Week?

Does it concern you that you linked a post, and advanced claims originally made in that post, when the blogger who wrote the post, Cory Doctorow, had already published a correction which directly contradicts what she wrote (and you've asserted above).

As for my commercial interests, if the MBA was some sort of scam for me to make money I would doing a pretty poor job of it since I do not draw a salary, pay almost all expenses out of my own pocket and have probably put $100,000 into the MBA since 2004 not counting the opportunity cost of not being paid for my work or my travel time related to the MBA.

There is a need for bloggers to get access to the same sorts of legal and financial support that very large blogs, newspapers, TV & Radio and film companies have. We intend to provide it. Some people feel threatened by that and by repeating their false claims you are carrying water for them. Nice work!

I can count on one hand the number of times I've been PAID for my speaking appearances over the past 5 years. In most cases I pay all of my own expenses and am not compensated for my time t all. In some cases, I am reimbursed for some or all of my travel expenses. For example, I was asked to speak tomorrow at a conference in Lowell, MA. I will pay my own way there and back (from New York), my meals and any other expenses, the are putting my for a night in a local hotel. They are not paying me for my time or any sort of fee or honorarium. Last month I was asked to speak at the First Amendment Center's "Justice & Journalism" conference in Washington, DC. They paid for my travel but not my time; I was in DC for 2 days for their event. This is fairly typical of the types of events I do. I have made dozens of speaking appearances over the past year but just once have I been PAID for an appearance; an event at Middle Tennessee State University with Al Gore, Jimmy Wales of Wikipedia and John Seigenthaler and others.

The MBA site has listed just a small fraction of the number of speaking engagements I have accepted, and makes very little mention of the work I do behind the scenes with a wide variety of organizations to advance the mission of the MBA.

The MBA does not SELL legal services. For the past four years we have provided AT NO CHARGE help to our members in finding pro bono legal assistance. As the word got around, we have also been contacted by non-members like the blogger in the AP case and we try to help them too as best we can.

In fact, as noted in my past last week, right now we do not even "sell" memberships. When we do sell them later this summer they will cost $25 a year which many in the MBA have criticized as TOO LOW. As my blog post on WordsinEdgewise.tv last Friday makes clear, we are in the middle of rolling out a series of initiatives which are intended to provide education and legal support services. Managing all that is time consuming and expensive and will become more so as we grow and so need to start paying people, including me, for their time but that has yet to happen at this point.

On final point, neither the MBA nor I make any money from the media liability insurance we helped develop. Same for the course on media law for bloggers we developed in partnership with the Media Pro legal department and Harvard Law School's Citizen Media Law Project. That course is being GIVEN to The Poynter Institute's Knight Foundation funded News University so that any blogger can take the course whether they join the MBA or not. We do not make a dime from that either.

Given all this, I would like to understand the basis for your accusation that I have a "commercial" interest in "scaring bloggers".

Confused

July 21, 2008 8:46 AM

Isn't "Hot News" a new york only common law doctrine?

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Bloomberg Businessweek writers Peter Burrows, Cliff Edwards, Olga Kharif, Aaron Ricadela, and Douglas MacMillan, dig behind the headlines to analyze what’s really happening throughout the world of technology. Tech Beat covers everything from tech bellwethers like Apple, Google, and Intel and emerging new leaders such as Facebook to new technologies, trends, and controversies.

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