by Paul Alan Levy
Fox News, which filed DMCA takedown notices late last year against three excerpts showing significant remarks by political figures during news interviews that were posted by ProgressIllinois.com on YouTube, as well as the Progress Illinois blog, has admitted defeat for now. Fox was either unable or unwilling to back up its copyright complaint against ProgressIllinois.com, which posted three video excerpts from Fox newscasts. 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 Progress Illinois' blog and its YouTube account, which had been suspended, is active.
Public Citizen, which represented Progress Illinois 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 Progress Illinois waive its fair use rights for all future uses of Fox material.
Fox's position is that the price of making 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. Specifically, Fox is apparently in the course of 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 other services including YouTube and blip.tv (which Progress Illinois began using, with great success, after YouTube suspended its account). 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."
One of the most mysterious aspects of this episode was that at the same time that Fox pulled down three clips from Progress Illinois, it was allowing other bloggers to post far more extensive materials from its programming. (We are deliberately not naming names here) Did Fox pick on ProgressIllinois because it thought it had found an easy target that would easily be bullied into accepting its “post with commercials” demands? Did it pick on Progress Illinois because of its political stance? Or was it because it was embarrassed that Progress Illinois’s original excerpt had allowed a rival network to scoop Fox based on a review of Fox’s own interview with David Axelrod?
Although Fox has not yet made its arrangements with a third-party, there is great danger here. If bloggers start giving in to this demand, that will only help Fox enforce the same threat against other bloggers, to the extent that it enables Fox to argue that there is, in fact, a market for small excerpts from its newscasts. We urge the blogging community to pay close attention to these developments, and come to the defense of the next "weak link" that Fox targets to enforce its approach.
It may not be altogether a bad thing for bloggers if more video hosting providers develop the breadth to compete with YouTube. But a hosting provider whose strategy for growth is a business model based on shaking down bloggers to take advertisements is not our idea of progress.
In the meantime, Progress Illinois has had its YouTube account completely restored, including the clips excerpted from Fox showing 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.
This controversy also 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.