Public Citizen attorney Paul Alan Levy’s news (1/30/09) of bloggers’ win over Fox News provides a dark glimpse into the network’s anti-Fair Use machinations:
Public Citizen, which represented ProgressIllinois.com 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 [from YouTube of Fox newscast excerpts] lifted, Fox demanded that ProgressIllinois waive its fair use rights for all future uses of Fox material.
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, blip.tv 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.”
Though ProgressIllinois’ YouTube account has been “completely restored” and the video excerpts are back online, Levy sees the episode 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.” His more public-minded solution: “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.”
See the FAIR magazine Extra!: “Fair Use It or Lose It: Copyright Owners’ Threats Erode Free Expression” (5-6/06) by Marjorie Heins