Wednesday, January 7, 2009

Fox Chicago O&O sends takedowns to YouTube over liberal web site's videos; were its uses fair?

Via EFF and the Citizen Media Law Project comes word that Progress Illinois has had its YouTube Channel removed after Fox Television Stations, owner of WFLD-TV, the Fox O&O in Chicago, sent YouTube notices of copyright infringement on 3 videos containing WFLD footage that Progress Illinois had posted to its account. According to CMLP, one of the clips had 26 seconds of WFLD footage from a news broadcast; the other two "included 1-2 minute clips from an interview conducted with President-Elect Obama's adviser David Axelrod on Fox Chicago Sunday." Progress Illinois says its practice was to embed the YouTube videos on its site and then, in the surrounding text, comment on "something said by a political figure" or "highlight[] an interesting statement by a guest or reporter" or "criticize[] Fox Chicago itself."

A few thoughts:

1) It's important to keep in mind that news broadcasts do enjoy copyright protection, and one can't simply copy others' broadcasts willy-nilly. Los Angeles helicopter videographer Bob Tur has aggressively enforced rights in his news footage, and, as this case he won in the Ninth Circuit makes clear, shouting from a First Amendment and fair use soapbox will not necessarily absolve an accused infringer of liability for rebroadcasting news footage.

2) Of course one's instinct is to claim fair use in such an instance, and it may well turn out that Progress Illinois' uses were fair. But I'm not going to venture an opinion without actually having seen the videos in their surrounding context. As the Supreme Court has said, "The task [of fair use analysis] is not to be simplified with bright line rules, for the statute, like the doctrine it recognizes, calls for case by case analysis." Despite what many believe, there is no magic number of seconds of video (or notes in a song, or words on a page) that are safe; it's always necessary to march through all four fair use factors. Frankly, the clips of 26 seconds and 1-2 minutes are a bit long to give me too much confidence that the uses are likely fair. Were I to review the actual videos, I'd ask myself whether they are so long that they threaten to act as a reasonable substitute for watching the actual broadcast, or the video on the station's web site, or, rather, are they just long enough to foster the kind of critical or political discussion that the First Amendment and the fair use doctrine exist to protect and promote. Again, without seeing the videos on which Fox sent the takedown notices, I can't say.

3) EFF and CMLP analogize this incident to one involving takedown notices sent by news networks to YouTube regarding footage incorporated into political videos produced by the McCain campaign (on which I worked). While there are obvious parallels, it should be noted that the clips that the campaign used were much, much shorter than those used by Progress Illinois; ours were well under 10 seconds. Below are 3 examples of McCain videos on which news organizations sent takedowns. The first of these disputes was resolved through negotiation (this particular one was posted by someone else); on the the latter 2, the campaign sent counternotices, and neither Fox News nor Christian Broadcasting Network filed suit within the 10-14 day DMCA window, so YouTube reposted them):

(Couric footage)

(Fox map footage about 1:02 in)

(CBN footage about :15 in)

4) CMLP links to a purported counternotice that it says Progress Illinois sent to YouTube. But I'm not so sure the document to which CMLP links is a valid counternotice under the DMCA. It actually seems to be two separate letters. The first is to Fox Interactive Media (not even to Fox Television Stations, the copyright claimant) -- not to YouTube. But the DMCA requires that a counternotice be sent to the host, not the copyright owner. Though it's not clear, the second letter does appear to have been directed to YouTube. But it lacks some of the necessary counternotice language, such as a consent to jurisdiction and a statement under penalty of perjury that the sender has "a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled." (Strangely, this language was in the letter to FIM.)

5) Progress Illinois is certainly not the only political/journalistic site that posts longish news videos. For example, I think Talking Points Memo is seriously pressing its luck with videos like this (6:04 from MSNBC), this (8:19 from Fox), and this (16:22 (!) from MSNBC). (I'm assuming TPM did not have permission to copy and post these; of course if it did have permission, there's no problem.) One day some media company is not going to fold in the face of a counternotice, and some interesting fair use law will get made.

6) YouTube is a private company with First Amendment rights of its own. It can decide to host -- or not host -- the videos it chooses. No one has a "right" to have his or her videos hosted on YouTube. YouTube provides a very valuable service -- for free -- and has come to be a very important platform for political speech and journalism. But we shouldn't forget that when YouTube hosts and broadcasts our user-uploaded videos for free, it's by the grace of YouTube, and there's no guarantee that those videos will stay where we put them.

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

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