The problem I have with that is that only a trial can tell "fair use" from "not fair use". A few billable hours with a lawyer probably won't tell you anything more than that. Review is great, but it's not an absolute, as an IP lawyer is most definitely not the final authority.
All I am looking at is whether there is a basis to hang a hat on.
And if that is the case then people will come to the defense of the accused and the complainant may back down or reevaluate their position. All with the resulting publicity (which actually would happen even if he was wrong but that's much more risky so I wouldn't advocate w/o some leg). In any event you have to ask yourself what their game is and whether they would seek damages (can't get blood from a stone you know) and whether they even want to spend (they aren't exactly super profitable or anything) resources on this.
Consequently I don't care what would happen at trial because there isn't going to be a trial. The NYT isn't going to spend resources on this.
This is all strategy based on my experience.[2] You ask 10 people you will get 10 opinions. All I'm saying is that it pays to have someone review before backing down in "3 days". [1]
[1] Absolutely inconceivable that the NYT won't allow someone to locate an attorney to review which in no case is 3 days reasonable. There is no imminent harm to them. This is on the face the standard "scary lawyer letter" intended to cause exactly the reaction that it did.
[2] I had two situations where both American Express and the NCAA came calling with scary lawyer letters many years ago and was able to keep them at bay with a reply letter from my attorney. And other things like this. Law and strategy are two different things.
The problem I have with that is that only a trial can tell "fair use" from "not fair use". A few billable hours with a lawyer probably won't tell you anything more than that. Review is great, but it's not an absolute, as an IP lawyer is most definitely not the final authority.