The law and economics of blogging: copyright and fair use

[See the Introduction to the Law and Economics of Blogging.]

LA Times v. Free Republic, 54 U.S.P.Q.2d 1453 (C.D. Cal. 2000) held that posting on websites articles from the L.A. Times and Washington Post constituted copyright infringement and was not protected as “fair use.”

This holding could sharply limit the commentary or “remora fish” function of blogging discussed above, in which bloggers add value to mainstream media stories.

On the other hand, this case illustrates the need to reach some accommodation with the property rights of the mainstream press. The "remora fish" function of blogging assumes the existence of very widely distributed media whose importance justifies commentary. In other words, remora fish need sharks. In order to achieve the necessary distribution, the sharks have to make capital investments in their intellectual property. They will not make these investments without some sort of legal protection.

A reasonable compromise is possible. Rather than reproducing the full article, the blogger can simply link to the article, which is the accepted practice. The mainstream media thereby can control and charge for access to the actual article. To be sure, this doesn’t resolve all questions and problems. Some outlets, such as the Wall Street Journal, charge for access, and even free registration can be burdensome (as by opening the registrant to spam). Also, there may be questions about what constitutes fair use, and there are even constraints on linking. These questions are summarized here.

Moreover, the copyright process burdens links and use even of material from blogs and other informal material, as to which there is less clearly a need to provide protection in order to encourage production. See Christopher Sprigman, Reform(aliz)ing Copyright, 57 Stan. L. Rev. 485 (2004), draft here.

Assuming linking is enough in most cases, mainstream media can decide whether or not the commentary or remora fish function of blogging is worth encouraging by making the source material freely available. If bloggers add value, and controlling or charging for access to the original material reduces that added value, the msm will have a incentive to allow free linking or pasting. For more informal media, the best solution may be a Creative Commons license.