Jan. 30, 2009
Statement of Paul Alan Levy, Attorney, Public Citizen
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 to 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 here and here.
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.