This is far from textbook. If this is textbook anything, it is textbook "taking a calculated risk that no copyright holder is going to come after you for infri

This is far from textbook. If this is textbook anything, it is textbook "taking a calculated risk that no copyright holder is going to come after you for infringement". It's a variation on the risk calculation an individual does when downloading copyrighted material. In the case of an individual downloading an MP3, they may (unconsciously) decide that saving $0.99 is net positive versus a $5000 settlement (no better than 1 in 5000 chance that they're going to be discovered and lose). For the NYT, they must figure that whatever ad revenue they gain from the story isn't going to be offset by the expected value of a judgment should some unknown copyright holder emerge and actually assert their rights. The only difference is the scale. It didn't seem clear to me that the original newspaper was even going to be able to clearly prove it held the copyright to the material. But this is not fair use. I'd categorize it as the same kind of benign and beneficial piracy that we all know promotes culture and the arts (just as sampling an MP3 illegally doesn't in fact harm the artist or even the label since it often increases the likelihood of future economic activity benefiting the actual copyright holders.)