YouTube dispute

OMD Article Includes Ominous Quote From FOX

Josh Kalven — Mon, 02 Feb 2009 08:45:45 -0800

Today, Wendy Davis at Online Media Daily published an article on the apparent resolution of our YouTube dispute with Fox Chicago. But it includes a quote from a Fox spokesman suggesting that the matter might not be over yet:

Progress Illinois's lawyer, Paul Alan Levy of Public Citizen, said he didn't expect the site to change its procedures. "Progress Illinois intends to continue excerpting from Fox, as it always has, subject to fair use restrictions, just as it always has," he told Online Media Daily. But Fox might have other ideas. "We are continuing to review the situation," a company spokesperson said.

Levy is quite right that we plan to continue excerpting Fox Chicago footage -- within fair use guidelines -- and uploading those clips to YouTube. Since our account was reinstated late last week, we haven't had occasion to do so. But when we do, it will be interesting to see how Fox reacts.

A Byproduct Of Our YouTube Dispute?

Josh Kalven — Sat, 31 Jan 2009 11:41:49 -0800

In my first post on Progress Illinois' dispute with FOX Chicago over our use of their video content on YouTube, I wrote the following:

Rather then trying to turn the clock back to 1995, WFLD should get its web presence in order. Rather than trying to impede the use of their content, the station should embrace bloggers' interest in their coverage and figure out a way to share video in a usable, functional, and timely manner. Indeed, if we had been able to find embeddable versions of the videos in question, we would have surely used those (as we do with MSNBC content), rather then upload our own.

Now that the dispute has seemingly come to an end, I wanted to note one possible byproduct of the whole dust-up: FOX Chicago yesterday rejiggered its website yesterday to allow for embeddable video. This is a step in the right direction. Of the seven major news networks in Chicago, FOX and CLTV are currently the only stations to offer video embedding. The remaining five: ABC 7, NBC 5, CBS 2, WGN, and WTTW would all do well to follow suit.

Fox Chicago Backs Off Its Erroneous Copyright Claims

Josh Kalven — Fri, 30 Jan 2009 13:17:01 -0800

We're pleased to report that, as of 8:10 pm last night, Progress Illinois' YouTube channel is finally up-and-running again after being suspended for more than six weeks due to a copyright infringment claim from FOX Chicago.

With the representation of Public Citizen's Paul Levy, we followed the Digital Millenium Copyright Act's guidelines for contesting such a claim and also corresponded with the FOX legal team regarding their objections to our use of the station's content, which we contend is protected by federal Fair Use laws. Their unreasonable demands for future use prevented us from reaching any formal agreement. Nonetheless, FOX ultimately chose not to take further legal action and YouTube reinstated our account.

We hope that, if and when FOX or any other outlets have a problem with our use of their content, they'll reach out to us with their objections, rather than take the heavy-handed approach of having our YouTube account shut down. As Ben Sheffner put it on his blog Copyrights & Campaigns, "[T]his is a clear win for Progress Illinois." Hopefully, the entire dust-up will serve as an example to mainstream outlets of how not to handle such matters.

For more detail on this turn of events, here's the statement out today from Levy and Pubic Citizen:

As we predicted, Fox News was either unable or unwilling to back up its copyright complaint against ProgressIllinois.com, which posted three video excerpts from Fox newscasts on YouTube, as well as the ProgressIllinois blog. By failing to file suit to enforce its claims, Fox has shown it recognizes that the use of the excerpts were fair use. The clips have now been restored to ProgressIllinois’ blog and its YouTube account. In addition, the YouTube account, which had been suspended, is active.

Public Citizen, which represented ProgressIllinois 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 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.”

Although Fox has not yet made these arrangements, we urge the blogging community to pay close attention to these developments. In the meantime, ProgressIllinois has had its YouTube account completely restored, including the Fox clips of a Cook County, Ill., commissioner brazenly defending the misuse of his expense account and excerpts from an interview with one of President Obama’s top advisors. The videos can be viewed on the Progress Illinois blog here and here.

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. 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.

Free Press Covers Our YouTube Dispute With Fox Chicago

Josh Kalven — Fri, 23 Jan 2009 11:15:29 -0800

Today, Free Press' "Media Minutes" podcast covered our dispute with Fox Chicago regarding the use of their content on YouTube. Listen below:

Internal mp3

At the moment, all I can say about the dispute is that Levy has been in contact with Fox Televisions Stations' legal team in California and talks are ongoing. Meanwhile, the clock is ticking for Fox to make a decision as to whether to sue us over the YouTube clips in question. If they don't take legal action by late next week, YouTube should reinstate our account shortly thereafter.

We'll let you know if and when there are any further developments.

10 Days And Counting

Josh Kalven — Wed, 14 Jan 2009 08:18:13 -0800

The clock is ticking for Fox Chicago.

After our YouTube channel was suspended due to copyright infringement clams by the station, we sent a counter-notification to YouTube challenging WFLD's complaints. Yesterday, we received an email letting us know that our counter-notice had been forwarded on to Fox.

At this point, the ball is squarely in the station's court. If they don't respond to the notice in the next 10 business days, YouTube will restore our material. If they tell YouTube that they're standing by their infringment claims, we're prepared to enter litigation.

Meanwhile, we 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.

Meanwhile, the dispute continues to attract attention in the blogosphere. Click here for our full coverage.

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

Josh Kalven — Mon, 12 Jan 2009 10:35:33 -0800

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.

More Coverage Of Our YouTube Dispute

Josh Kalven — Thu, 08 Jan 2009 12:11:46 -0800

In addition to MediaPost's article on our ongoing copyright dispute with Fox Chicago, Mashable editor-in-chief Adam Ostrow picked up the story this morning. Here's his take:

Ignoring the copyright issue – where ProgressIllinois would seem to be in the right anyhow – Fox News is simply being ignorant in terms of how to utilize the Web. Having clips re-posted with commentary adds more exposure for their content, at no additional cost, since the videos are hosted on YouTube or other video sharing sites. Further, if Fox News’ issue is that they want to be compensated for the clips, they could do a deal with the video sites to make clips available and include ads. Instead, Fox News has just had the content taken down, which is of no benefit to anyone.

ProgressIllinois tells Online Media Daily that they are prepared to sue Fox News over the takedown. But, that shouldn’t be necessary. The company should see the light and do what’s good for everybody, including themselves, by letting ProgressIllinois use the clips.

The Electronic Frontier Foundation chimed in yesterday as well. And attorney Ben Sheffner wrote about the issue on his blog Copyrights & Campaigns last night. While Sheffner may be right about whether our counter-notification is in order (I'm looking into that now), it's most likely beside the point. On Monday, I sent the memo to an acquaintance at Fox Chicago. The legal team and general manager there have read it and expressed interest in coming to some agreement. Meanwhile, Paul Alan Levy of Public Citizen has agreed to represent us in our talks with the station. There should be more news to share on that front in the coming days.

Meanwhile, if you're interested in learning about the policy side of this, be sure to read Levy's recent blog post proposing revisions to the Digital Millenium Copyright Act.

More On The Fox Chicago Dispute

Josh Kalven — Wed, 07 Jan 2009 16:41:02 -0800

In response to Progress Illinois' dispute with Fox Chicago over our use of brief clips from their news coverage, some have asked me exactly how many YouTube videos we create that included WFLD footage. Here's the answer: a sweep of our coverage during the past ten months found that we uploaded 11 videos with Fox Chicago content.

If you click on the links at the bottom of this post, you'll see that in four of these cases, we pulled down the clips to criticize something said by a political figure. In six others, we were highlighting an interesting statement by a guest or reporter. In the remaining one we criticized Fox Chicago itself. Furthermore, in only three of these cases are the full videos of the underlying segments available on Fox Chicago's website. Meanwhile, a search of the YouTube database for the terms "Fox Chicago" and "Fox Chicago News" turned up nearly 300 functioning videos.

I'd also like to make this point about the use and subsequent removal of the Axelrod clip. In my original post on the dispute, I noted that Fox complained about that video only after it gained some attention in the national blogosphere:

In the ensuing weeks, we uploaded additional brief clips from various WFLD broadcasts without incident, including an excerpt from David Axelrod's November 23 appearance on Fox Chicago Sunday. Then, on December 9, ABC News' Jake Tapper embedded our YouTube video on his blog, pointing out that one of Axelrod's comments appeared to contradict a subsequent assertion from the Obama camp.

Apparently hoping to capture some of the traffic attracted by our Axelrod clip, FOX filed another infringment complaint. Our video was subsequently taken down on December 10 and, later that day, our channel was suspended due to repeat copyright offenses. At the same time, WFLD uploaded their own excerpt of the relevant portion of the interview to their website.

But here's the catch: reporters like Tapper and others never would have known about the Axelrod statement in question if we hadn't specifically highlighted it in our November 23 blog post. While the full interview was indeed available on Fox Chicago's website (I incorrectly suggested otherwise in my initial post), the station didn't write any accompanying article. In short: WFLD was frustrated that that our clip was attracting web traffic; but there wouldn't have been any traffic if it wasn't for our clip.

Again, it appears we're being punished for seeing news value in Fox Chicago's content that they themselves are missing.

Progress Illinois posts containing WFLD footage:

- Sen. Sandoval Gives McCain Undue Credit On Immigration Reform (6/23/08)
- Roskam And Shimkus' VISION Act Fudges The Numbers (7/15/08)
- Halvorson Says She Would Have Opposed Both Bailout Bills (10/6/08)
- FOX's Conaty Calls Kirk's Drilling Claim "A Bit Disingenuous" (10/19/08)
- Fox Chicago Botches Report On "Voter Fraud" In Lake County (10/29/08)
- "This Is Making History" (10/30/08)
- The Need For Recessionary Tax Reform (11/17/08)
- The Chicago City Budget: Preparing For Round Two (11/18/08)
- Cook Co. Commissioners Try To Rein In Back-Door Pay Raises (11/18/08)
- Axelrod Comments On Open Senate Seat, D.C. Leadership Vacuum (11/23/08, two separate videos)

Citizen Media Law Project Highlights Our YouTube Case

Josh Kalven — Tue, 06 Jan 2009 16:00:13 -0800

Yesterday, I described how Fox Chicago's short-sighted reaction to our use of clips from their news coverage recently resulted in the suspension of our YouTube account. Today, the Citizen Media Law Project (CMLP) at Harvard University's Berkman Center for Internet & Society took note of our case and provided some additional context. In his blog post on the matter, CMLP director David Ardia cited an earlier example of FOX's "overreaching copyright claims" before concluding:

Fox's heavy-handed response to Progress Illinois' use of its clips highlights the network's myopic view of the media ecosystem in which it operates. Rather than seeing Progress Illinois as a competitor attempting to steal website traffic from WFLD-TV, the network should be grateful that its political coverage is generating buzz in the blogosphere.

That's exactly right. The fact that we occasionally highlight excerpts from WFLD's coverage should be seen as a benefit to the network -- an indication of relevancy. If there is anything depriving the network of website traffic, it's their own failure to adapt to the times.

Take Fox Chicago Sunday, for instance. This is a great show and the origin of many of our (now unavailable) YouTube clips. Every weekend, the program is full of guests from across the political sphere in Illinois. For online commentators looking for fodder, it's a treasure trove. But take a glance at the show's homepage. It's a mess. There are only three video clips available for viewing -- all of them outdated.

In short, it appears we're being punished for doing a better job of promoting Fox Chicago's content than the network itself.

FOX Chicago Shuts Down Our YouTube Channel

Josh Kalven — Mon, 05 Jan 2009 09:07:58 -0800

As some of you might have noticed, the Progress Illinois YouTube channel has been disabled for the past three weeks, along with the corresponding "video wall" that is normally a fixture on our homepage. Here's an explanation of what happened and what we're doing to hopefully remedy the situation.

On December 10, our YouTube account was suspended after three copyright infringement complaints from FOX Television Stations for our use of news footage from WFLD, the FOX affiliate in Chicago. It's unfortunate that rather than contact us directly about our use of their content, FOX took action that ultimately resulted in us -- and our readers -- losing access to the over 100 clips compiled on our channel over the past nine months, including over 25 original videos. Even more discouraging are the circumstances surrounding the videos in question.

Prior to the December 10 suspension, we had received only one infringement complaint from FOX. This came on November 18, in response to a YouTube video that contained a 26-second clip from a FOX Chicago newscast that had aired a week earlier. At the time, we were bewildered by FOX's action for several reasons. First, the length of the video surely fell within Fair Use guidelines. Second, we clearly credited WFLD as the source of the clip in a title frame preceding the footage. Third, the clip was used in the context of a blog post that commended FOX's reporting and sought to follow-up on their investigation. Fourth, the post included a prominent link to the full video and accompanying article on the FOX Chicago website.

At the time, we considered the complaint a fluke and took no action to restore the video. In the ensuing weeks, we uploaded additional brief clips from various WFLD broadcasts without incident, including an excerpt from David Axelrod's November 23 appearance on Fox Chicago Sunday. Then, on December 9, ABC News' Jake Tapper embedded that video on his blog, pointing out that one of Axelrod's comments appeared to contradict a subsequent assertion from the Obama camp.

Apparently hoping to capture some of the traffic attracted by our Axelrod clip, FOX filed another infringment complaint. Our video was subsequently taken down on December 10 and, later that day, our channel was suspended due to repeat copyright offenses. At the same time, WFLD uploaded their own excerpt of the relevant portion of the interview to their website.

The underlying assumption behind FOX Chicago's actions is that, by posting brief clips from their reports, Progress Illinois was depriving the station's website of traffic. In fact, I would argue that we were doing the opposite: highlighting WFLD's often-valuable political coverage and raising the station's profile in the progressive community (where the FOX brand carries a certain stigma).

This whole sequence of events perfectly illustrates the short-sighted response from some mainstream media outlets to the use of their content in the blogosphere. Rather then trying to turn the clock back to 1995, WFLD should get its web presence in order. Rather than trying to impede the use of their content, the station should embrace bloggers' interest in their coverage and figure out a way to share video in a usable, functional, and timely manner. Indeed, if we had been able to find embeddable versions of the videos in question, we would have surely used those (as we do with MSNBC content), rather then upload our own.

We believe that our use of WFLD's content falls under Fair Use and have filed a counter-notification with YouTube asserting that position. Our hope is to come to an agreement with WFLD regarding our future use of their footage. If they want us to refrain from ever clipping their coverage, so be it. My hope, however, is that they will hear our side of the argument and we can ultimately find some middle ground.

We'll keep you updated on any further developments.

Below is our counter-notification (click button in the top right corner to expand):

CORRECTION: This post originally asserted that the full video of the November 23 Axelrod video was not available on Fox Chicago's website. In fact, they did upload the full interview on the same day it aired. However, it was nowhere to be found on Fox Chicago Sunday's website at the time.