Friday, January 30, 2009

Progress Illinois and Public Citizen crow over fair use win; propose copyright reforms

Liberal web site Progress Illinois and its counsel at Public Citizen are taking a victory lap after their win over Fox's WFLD-TV in a fair use battle regarding the site's posting of news footage to its YouTube account. And they're calling for a few changes over how similar disputes are handled in the future. Writes Progress Illinois Editor Josh Kalven:
We hope that, if and when FOX or any other outlets have a problem with our use of their content, they'll reach out to us with their objections, rather than take the heavy-handed approach of having our YouTube account shut down.
While I understand Kalven's frustration, I see a few problems with this proposal. Kalven's suggestion that copyright holders directly contact the alleged infringer when their works are posted to user-generated content ("UGC") sites like YouTube is impractical and would seriously frustrate the legitimate interest copyright owners have in combating infringement. One positive aspect of the DMCA is its centralized registry of agents designated to receive infringement notices. Copyright owners can search this list whenever they need to send a notice to a UGC where they find their works being infringed; they need not frantically scour the web looking for contact info for each alleged infringer (not all are as easy to find as Progress Illinois). For large copyright owners, whose works are unambiguously pirated countless times each day, the burden of finding each individual alleged infringer would be crippling.

Also, it's not quite fair to say that Fox "ha[d] [Progress Illinois'] YouTube account shut down." Fox sent takedown notices to YouTube on what it believed were infringing videos, and I don't have any reason to doubt that it did so in good faith. But it was YouTube -- following its own terms of service and its interpretation of the DMCA (e.g., how many notices qualifies a user as a "repeat infringer" and what are the "appropriate circumstances" that merit termination) -- that suspended Progress Illinois' account. YouTube, in fact, could have declined to remove the videos or suspend Progress Illinois' account -- but it chooses not to make such case-by-case determinations.

Progress Illinois' counsel at Public Citizen, Paul Alan Levy, has some harsh words for Fox:

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, 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.”

The details of this possible arrangement with the "third-party video-hosting service" are not yet known, but this apparent effort to guide those who wish to make use of Fox footage into specified Fox-approved online hosts will bear watching.

Lastly, Levy calls for a fairly significant re-write of the DMCA's notice-and-takedown process:
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.
Without getting into the merits of Levy's call for amending the DMCA, I do think it's pretty safe to say that this will not happen any time in the foreseeable furture. The two biggest stakeholders in the notice-and-takedown process -- copyright owners and ISPs -- appear to have come to an uneasy détente over web video issues -- and have little appetite for opening up a new, giant legislative battle, where each side fears ending up in a worse situation than before. Occasional flare-ups like the Progress Illinois/WLFD dispute (which constitute a tiny percentage of all takedowns) are unlikely to change that calculus.

UPDATE: interesting (at least to me) back-and-forth here.

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