January, 30 2009, 01:27pm EDT
Fox News Can't Support Its Phony Copyright Claims
Blogger’s Right to Use Video Excerpts Is Restored
WASHINGTON
As we predicted, Fox News was either unable or unwilling to back up its
copyright complaint against ProgressIllinois.com, which posted three
video excerpts from Fox newscasts on YouTube, as well as the
ProgressIllinois blog. By failing to file suit to enforce its claims,
Fox has shown it recognizes that the use of the excerpts were fair use.
The clips have now been restored to ProgressIllinois' blog and its
YouTube account. In addition, the YouTube account, which had been
suspended, is active.
Public Citizen, which represented ProgressIllinois in this matter,
tried to talk to Fox about its claim filed under the Digital Millennium
Copyright Act (DMCA) and discuss possible guidelines for future use,
but we received a chilling demand. As a price of getting the DMCA
takedowns lifted, Fox demanded that ProgressIllinois waive its fair use
rights for all future uses of Fox material.
Fox contends that if a non-commercial bloggers wants to make fair use
of excerpts from its news broadcasts is that an otherwise
non-commercial blogger must allow Fox to run advertisements on the blog
as part of the excerpt. That is an outrageous imposition on fair use.
Specifically, Fox is negotiating with a third-party video-hosting
service, which bloggers who want use Fox excerpts would be required to
use (rather than bloggers making their own choice between YouTube, blip.tv
or other services). The third-party service would then incorporate ads
from Fox advertisers into any excerpt made from Fox material and Fox
would receive the proceeds from the ads. It appears that Fox is
preparing to argue that, because it has the capacity of charging
advertisement revenues for excerpts posted by bloggers, any blogger who
does not use these services fails the "fourth" factor in the fair use
test - "the effect of the use upon the potential market for or value of
the copyrighted work."
Although Fox has not yet made these arrangements, we urge the blogging
community to pay close attention to these developments. In the
meantime, ProgressIllinois has had its YouTube account completely
restored, including the Fox clips of a Cook County, Ill., commissioner
brazenly defending the misuse of his expense account and excerpts from
an interview with one of President Obama's top advisors. The videos can
be viewed on the Progress Illinois blog at https://progressillinois.com/2008/11/18/pulling-cook-co-perks and https://progressillinois.com/2008/11/23/axelrod-on-fcs.
Meanwhile, this controversy serves as a reminder of the need to amend
the DMCA so that political commentary is not put on hold while the
procedure of notices of copyright infringement and arguments of
noninfringement plays out. The presumption should be that material
remains online until either the blogger fails to object to the takedown
after receiving notice, or, if the blogger objects, a judge decides
whether there was fair use.
Public Citizen is a nonprofit consumer advocacy organization that champions the public interest in the halls of power. We defend democracy, resist corporate power and work to ensure that government works for the people - not for big corporations. Founded in 1971, we now have 500,000 members and supporters throughout the country.
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