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."