PI Original Josh Kalven Monday January 12th, 2009, 12:35pm

Fox Chicago’s View Of Copyright Law: Unfair And Imbalanced

Since my last post on the ongoing Fox Chicago/Progress Illinois dispute over our use of clips from their news broadcasts, there have been some interesting developments. For one, the station responded last week stating that they are willing to discuss the establishment of ...

Since my last post on the ongoing Fox Chicago/Progress Illinois dispute over our use of clips from their news broadcasts, there have been some interesting developments.  For one, the 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.

To get a better sense of our arguments, read the following statement from Paul Alan Levy of Public Citizen. The D.C.-based advocacy organization has agreed to represent us in our negotiations with Fox Chicago:

Fox Broadcasting has used its vast resources to unfairly squelch the First Amendment rights of an independent blogger. In this case, Fox Chicago objected to the use of three short video excerpts that were posted on YouTube to support political commentary on the site ProgressIllinois.com.

Because of Fox’s complaints, which invoked the Digital Millennium Copyright Act (DMCA), YouTube removed the video clips and suspended ProgressIllinois’ YouTube account. Public Citizen is representing ProgressIllinois in this dispute

Fox’s actions were an abuse of the DMCA, which allows for the “fair use” of excerpts, such as the clips used on ProgressIllinois. One of the video clips showed Cook County, Ill., Commissoner William Beavers brazenly defending his misuse of his expense account and two others showed David Axelrod, a senior counsel to President-elect Barack Obama, discussing Obama’s involvement in the selection of his U.S. Senate successor and his plans for the economy.

Fox claims that it is entitled to forbid bloggers from posting excerpts from its broadcasts. If bloggers want to call attention to a significant statement made during a Fox Chicago Sunday interview, their only option, according to Fox, is to provide a link to the broadcaster’s Web site. This option unduly hampers political commentary, one of our most cherished freedoms under the U.S. Constitution, because it limits bloggers to whatever Fox decides to put on its Web site.

In this case, Fox’s demands are unreasonable and impractical, as well. For example, Fox never posted the Beavers video to its Web site. And though it posted a complete video of the Axelrod interview, the audio was missing from half of the video, including the part where he talked about President-elect Obama’s contacts with Illinois Gov. Rod Blagojevich. 

But even if the complete videos had been posted, it would make no sense for a blogger who wants to comment on a small fragment of a long news program to expect readers to sit through the entire program.   For example, the Beavers segment used on ProgressIllinois comprised less than 30 seconds of a seven minute interview; the two Axelrod segments were each barely a minute of a 16-minute TV appearance. Well-settled principles of fair use protect the right to copy small portions of factual material for the purpose of political commentary.

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. 

Meanwhile, this controversy serves 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.

For those interested in learning how the DMCA could be amended to avoid these situations, read Levy's recent blog post on the matter.

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