Saturday, January 31, 2009

Another attempt to make a market for every use

Paul Levy posts here on Fox's attempt to argue that, because it's willing to run commercials to accompany any video excerpt online, there's no such thing as online fair use. This is a circular argument worth resisting; criticism shouldn't need to generate ad revenue for Fox.


  1. Rebecca --

    I see your point if Progress Illinois were commenting on or criticizing the WFLD coverage itself, i.e., saying the reporters asked dumb or biased questions, or faulting the editing or lighting, etc. The Supreme Court in Campbell made clear that the copyright owner doesn't get to charge for such uses: "the unlikelihood that creators of imaginative works will license critical reviews or lampoons of their own productions removes such uses from the very notion of a potential licensing market."

    However, now that I've actually seen the videos in context, I don't think that's what Progress Illinois was doing here, as is apparent from the 2 PI stories with the 3 embedded clips that were the subject of Fox's notices:

    Project Illinois' reporting/commentary is on what the subjects said while being interviewed by WFLD -- but not on the WFLD reporting itself.

    The more I think about it, the less I'm convinced that Progress Illinois has such a great fair use argument here. Rather, it seems they have just come up with a business model where they "outsource" the expensive work of paying camera crews to conduct interviews, and then use the fruits of that labor without having to pay a license fee. I'm not aware of any cases that support a finding of fair use in such circumstances.


    Ben Sheffner

  2. I have a broader vision of fair use, I suspect: just because Fox could run ads (which is not the same as charging for use), doesn't mean it's Fox's legitimate market, especially if the effect is to convert noncommercial blogs to commercial ones. As Mark Lemley and others have written, it's not wrong in itself to derive a benefit from others' work, especially if the result is something valuable to other people, like dissemination of news and commentary on the underlying facts revealed by the interviews (which Fox doesn't own, of course). Convince me that Fox will go out of business without this right, and I might be more sympathetic, but all I see here is a claim that because it could be commercialized it should be.

  3. I certainly agree that Fox doesn't own any "underlying facts." But it does own a copyright in its news footage, despite attempts to convince the courts otherwise. E.g.:

    I think the point Lemley has made is that the fact that an accused infringer derives benefit from others' works should not preclude a finding of fair use -- and I agree. But just because you're providing "something valuable to other people," even "news and commentary," doesn't mean you can infringe others' copyrights. I can't just stream a CNN feed for free over the Internet to everyone on earth -- even on my own noncommercial website -- and then claim it's fair use because I'm providing the valuable service of disseminating news and commentary.

    As for whether Progress Illinois is "noncommercial," I doubt that label fits. Its sole "sponsor" now is the SEIU, and its FAQ says it's "reaching out to other progressive organizations that wish to sponsor our work." So it does take advertising, at least from like-minded groups. And it has a "full-time writing staff" and pays freelancers. It just doesn't pay for video footage.

    And I think you'd have to admit that the test for fair use, at least under current law, is not "will the copyright owner go out of business if the use at issue is deemed fair?"

  4. Of course, but neither is the fair use test "could the copyright owner sell advertising in connection with this use"? When the content is factual, the use is productive--an excerpt, rather than the entire news feed, as part of commentary on the news--and the entity is First Amendment-noncommercial (accepting that copyright's definition of commercial is broad enough to encompass most human endeavors; however, I'll register disagreement with your implicit definition, since I don't think that "getting paid" makes a user a commercial user, nor does disseminating a political message), I think there's a strong fair use case. And I think there's substantial value in preserving a wide breathing space for fair users. Fox, it seems, is prepared to send out a bunch of these letters, and not every recipient will get Public Citizen's representation.

  5. I agree that the test is not "could the copyright owner sell advertising in connection with this use?" And you're right, as your last comment suggests, that it's necessary to march through all 4 fair use factors.

    I guess my overall point is that this is not the slam-dunk cause of fair use that everyone seems to assume, especially because PI's use is not really a comment on the Fox coverage. And we have not even gotten into the whole "watch page" issue, which no court has ever considered:

  6. Ben's distinction between use of another's media for the purpose of commenting on the media itself vs. commenting on the content of the media is interesting (and may be a very important distinction with content that does not include matters of public discourse) I don't think it makes much of a difference here. PI did not take ANY of Fox's news reporting--no anchor story, no commentary, no voice over, no B-roll. It took merely the content needed to discuss the issue it was raising. That content was a quote by a public official about a public controversy. If that piece of video has hardly any protectable "expression" for Fox; it's not being commercialized (in the way most courts consider commercialization in the fair use analysis); none of Fox's "original" expression (besides perhaps the lighting and creative choice by the camera person on framing the shot) was taken.

    Taken to the extreme, Ben's arugment would prohibit sportscasters from using highlights of games broadcast by another's network in the sports segment. Sports anchors' commentary isn't "oh, what a bad camera angle; if we only had our FOX Vision at this game..." It's "look at that shot by LeBron James." But the share-and-share-alike mentality of game highlights pervades sports. Likewise, I'm guessing that Fox may have ripped off other networks' sound bites from public officials when the couldn't (or didn't) get their sat truck there.

    Did PI not have to expend resources to hire a film crew, to buy hardware and software, to attempt to gain access to the public officials, and to edit and present the sound bite for their own purposes? Sure, that's true. But by the same token, PI's only source materials it had were the responses to the questions posed by Fox. Fox's true "gain" in investing all of that infrastructure was that they got to control the interview--ask the questions, edit out the stuff they didn't want to broadcast, and make it look like they wanted it to look. That's not an insubstantial benefit.

    My opinion might be different if PI decided to replay the whole Fox news report (which it does not appear to me that they did), but I think this is a pretty clear case of fair use, and (considering that PI was basically praising the investigative team at Fox) one they should not have pursued.

    Kyle Kaiser

  7. Kyle: the factors you cite -- "no anchor story, no commentary, no voice over, no B-roll," on issues of public importance (an airplane crash and a train wreck) -- were all present in the Los Angeles News Service case I linked to above. And the court still rejected the fair use defense. And the Ninth Circuit also rejected a fair use defense in a copyright suit by the same plaintiff over raw footage he shot of the Reginald Denny beating -- a matter of extreme public interest and controversy. See here: ("LANS does work that its licensees choose not to do for themselves, for example, operating its own helicopter with news crew aboard, and gets paid for licensing its coverage of news to the media.").

    My point is simply that the PI case is no slam dunk for fair use. All four of the factors matter. But courts *do* reject fair use claims over use of news footage -- even raw news footage without the "extras" you mention.