Daniel Solove of Concurring Opinions has a chilling (no pun intended) post, What if Copyright Law Were Strongly Enforced in the Blogosphere?

In it, he states:

We bloggers have, to put it mildly, a very robust concept of fair use … 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…

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.

A commenter on the legal blog adds:

Even if the blog is non-commercial, the risk goes beyond merely receiving a cease and desist letter from the copyright owner. The owner could seek statutory damages of $750 or more per infringement without having to prove any actual damages or profits to the infringer from the infringement.

Stock photography companies are already monitoring the Web for copyright violations — although so far they are taking a kinder and gentler approach than the RIAA.

According to The Wall Street Journal:

While Hollywood has been aggressive in its efforts to punish music and movie thieves, companies like Getty and Corbis are taking a different approach: They sic their sales teams, not their lawyers, on offenders.

At Corbis, the company prods infringers to become paying customers before turning to litigation as a last resort … Getty, for its part, has not filed a lawsuit against a photo thief in at least four years…

Thomas Claburn of Lot 49 argues that Solove’s RIAA analogy is unnecessarily alarmist:

There’s a critical difference between online news publishing and online music distribution: online news publishers, apart from a few notable exceptions like the Wall Street Journal Online, use their content to sell ads while music publishers sell their content directly.

News publishers have a disincentive to sue bloggers because bloggers contribute to their bottom line. Bloggers drive traffic to publishers’ sites, thereby contributing to ad revenue. Record companies, on the other hand, have a very hard time seeing any relationship between unpaid song downloads and unit sales. In fact, they assume the opposite, that every pirated song is a legal purchase denied, a fallacy but one that’s widely held nonetheless.

But Solove may prove prescient with regards to images. It seems to me that what’s likely to happen is that image companies like Corbis will either sue or negotiate with ad service providers like Google to get a cut of AdWords revenue from high traffic blogs that post copyrighted images. Suing individuals would be counter-productive because bloggers just aren’t going to pay to get premium photos on their sites.

Interesting stuff. Add in bloggers’ concerns about having their own content stolen, and at some point we may have quite a mess on our hands.

(Via Boing Boing)

Technorati tags: Copyright, Blogging, Stock Photography, Marketing