Wednesday, January 14, 2009

Progress Illinois/WFLD fair use dispute: game on

In the still very-much-alive dispute between Progress Illinois and Chicago Fox O&O WFLD, the DMCA clock is definitely ticking, and the station must now decide within 10-14 business days whether to sue the liberal web site for copyright infringement, or allow YouTube to repost the videos that contain WFLD footage.

Progress Illinois announced today that on Jan. 13 it received confirmation that YouTube had received its counternotice (as I previously noted, there was some dispute about whether the counternotice complied with the DMCA's technical requirements). So now, under DMCA Section 512(g)(2)(C), YouTube can maintain its safe harbor from an infringement claim if it reposts the videos after 10-14 business days, absent a lawsuit by the copyright owner (assuming that YouTube otherwise qualifies for the safe harbor, a very hotly contested topic). As YouTube further explains the counternotice process:

After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes your personal information. By submitting a counter-notification, you consent to having your information revealed in this way. We will not forward the counter-notification to any party other than the original claimant.

After we send out the counter-notification, the claimant must then notify us within 10 days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on YouTube. If we receive such notification we will be unable to restore the material. If we do not receive such notification, we may reinstate the material.

Interestingly, YouTube does not say that it "will" reinstate -- merely that it "may." Of course, YouTube has no obligation to host or broadcast anyone's video, and its terms of use make clear that it "reserves the right to remove Content and User Submissions without prior notice." Though I'm not aware of any cases in the user-generated video context, I would think that the precedent establishing that TV networks have a First Amendment right to determine their own programming choices would apply to the Internet as well; YouTube could very well decide that Progress Illinois (or any other account-holder) is just too much of a pain in its neck and ban it for life. However, in my experience, I have found that YouTube does re-post videos 10-14 business days after submission of a counternotice, as long as the copyright owner does not initiate litigation during that window.

Progress Illinois Editor Josh Kalven says that his counsel "sent a separate letter to our contacts at WFLD last Friday saying that we would be happy to sit down and discuss reasonable guidelines for our future use of Fox Chicago video content. But we're yet to hear back." If it happens, that should be a very interesting meeting.

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