Progress Illinois threatens suit over WFLD YouTube takedowns

Progress Illinois, the liberal news site that had its YouTube account suspended after the local Fox station in Chicago sent DMCA takedown notices on 3 Progress Illinois videos, is threatening a lawsuit against the station if an agreement can't be reached over what the site claims are fair uses of WFLD-TV news footage. In a statement released Monday, Progress Illinois' counsel, Paul Alan Levy of Public Citizen, asserted that "Fox’s actions were an abuse of the DMCA, which allows for the 'fair use' of excerpts, such as the clips used on ProgressIllinois." And he threatened to sue if the two sides can't agree to "guidelines" over the proper use of Fox footage:

Fox has offered to discuss the withdrawal of its copyright takedowns and the adoption of guidelines for use of its copyrighted material. We have suggested guidelines to Fox that we believe protect ProgressIllinois’ fair use and free speech rights. But to avoid litigation, Fox must move promptly to lift its objections.

As previously noted, Progress Illinois asserts that its uses of WFLD footage as the basis for political commentary, consisting of from 26 seconds to 1-2 minutes recorded from news broadcasts, were non-infringing fair uses. (I haven't seen the videos and therefore won't venture an opinion as to whether I agree with Progress Illinois' fair use argument.)

Levy's statement doesn't specify the nature of the litigation he may file, but the obvious cause of action would be a suit under Section 512(f) of the DMCA, which allows the target of a takedown to sue the sender of a notice "who knowingly materially misrepresents...that material or activity is infringing." Last summer, a federal court in California held that a copyright owner risks liability under 512(f) unless it engages in a "good faith consideration of whether a particular use is fair use" before it issues a DMCA notice.

In this post on Progress Illinois, editor Josh Kalven further describes the ongoing negotiations and suggests that the two sides remain far apart:

[T]he station responded last week stating that they are willing to discuss the establishment of guidelines that would result in the withdrawal of their copyright complaints and the reinstatement of our YouTube channel. Unfortunately, their preferred resolution -- in which we agree never to post Fox Chicago clips on our site -- is unacceptable, as we made clear in a response sent Friday.

Assuming that the uses were in fact fair -- and that Kalven's description of WFLD's position is accurate -- it doesn't seem like much of a deal for Progress Illinois. Why would any news or political site "agree never to post Fox Chicago clips" (my emphasis) -- regardless of whether such postings constituted non-infringing fair uses? After all, news organizations routinely make fair use of each others' footage; I doubt if any (including WFLD) would agree to a blanket ban on their own use of other stations' footage. With this big a gap between the parties, it seems that litigation is a real possibility.

One final point: Levy says in his press release that Fox "has used its vast resources to unfairly squelch the First Amendment rights of an independent blogger." No doubt, Fox has "vast resources," especially compared with a small site like Progress Illinois. But it doesn't take vast resources to send a DMCA notice to YouTube; anyone capable of filling out this simple form can do it.

[Disclosure: I previously worked as an attorney at Fox, though not at Fox Television Stations, which is the entity at issue here.]