Fair Use

Fox Television WFLD-TV v. Progress Illinois

Date: 

11/18/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Progress Illinois LLC

Type of Party: 

Media Company

Type of Party: 

Organization

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Material Removed
Material Reinstated

Description: 

On November 18, 2008, Fox Television sent a letter to YouTube demanding the takedown of a video uploaded by Progress Illinois, an organization that "provides online news and commentary on issues important to Illinois working families and the progressive movement at large."  The video, Beavers On Back-Door Pay Raises, was embedded in a blog post that examined how some Cook County commissioners were using their expense accounts for personal gain and contained a 26-second clip from a FOX Chicago newscast that had aired a week earlier. 

Fox subsequently sent a second letter to YouTube claiming copyright infringement as to two additional videos, Axelrod: Obama Talked to Blagojevich about Senate Seat and Axelrod: "Our Job Is To Come In . . . With Guns Blazing",  that included 1-2 minute clips from an interview conducted with President-Elect Obama's adviser David Axelrod on Fox Chicago Sunday that Progress Illinois embedded in a blog post on its website, Axelrod Comments On Open Senate Seat, D.C. Leadership Vacuum.

On December 10, 2008, YouTube removed the two videos containing clips of the Axelrod interview and, later that day, suspended Progress Illinois YouTube channel "due to repeat copyright offenses."  

On January 5, 2009, Progress Illinois sent a counter-notification to YouTube pursuant to the Digital Millennium Copyright Act, requesting that the three videos be restored and its account reinstated. (Note: lawyer Ben Sheffner at the Copyrights & Campaigns blog comments on some potential deficiencies in Progress Illinois' counter-notification to YouTube.)

Update:

1/12/09 - Progress Illinois, through its counsel Paul Alan Levy at Public Citizen, has stated that it is considering filing a lawsuit against Fox unless it withdraws its copyright objections.

1/29/09 - Progress Illinois' YouTube account has been reinstated.

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Threat Source: 

User Feedback

CMLP Notes: 

from John Bracken

Fox Television Forces Shutdown of Progress Illinois' YouTube Channel

Progress Illinois, which "provides online news and commentary on issues important to Illinois working families and the progressive movement at large," has had its YouTube channel terminated after receiving three notices of copyright infringement from Fox Television Stations, Inc. arising from the organization's use of news footage from WFLD-TV, the Fox affiliate in Chicago. 

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Preliminary Thoughts on GateHouse Media v. New York Times Company

Like a storm coming over the horizon, the recent lawsuit filed by GateHouse Media against the New York Times Company, which operates Boston.com, has thrown the CMLP into disarray just as we were preparing to depart to warmer climes for the holidays.

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GateHouse Media v. New York Times Company

Date: 

12/22/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

The New York Times Co. d/b/a Boston.com

Type of Party: 

Media Company

Type of Party: 

Media Company

Court Type: 

Federal

Court Name: 

United States District Court for the District of Massachusetts (Boston)

Case Number: 

1:08-cv-12114

Legal Counsel: 

Mark S. Puzella, Richard D. Hosp, Parker H. Bagley, Ira J. Levy, Michael T. Jones - Goodwin Procter, LLP

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

GateHouse Media, which operates more than 375 newspapers (in New England and elsewhere) and associated websites, filed a lawsuit against the New York Times Company in U.S. District Court in Massachussets, claiming, among other things, that headlines from -- and links to -- GateHouse content on Boston.com's "Your Town" sites constitute copyright and trademark infringement.  The New York Times Co., which owns the Boston Globe, operates local sites — currently in Newton, Needham, and Waltham, MA — that aggregate local content from the Globe, area blogs, and other newspaper websites, including GateHouse's Wicked Local websites.  

On December 22, 2008, GateHouse filed an eight count complaint against the New York Times alleging breach of contract, copyright infringement, false advertising, trademark infringement, trademark dilution, unfair competition, and unfair business practices.  On the same day, GateHouse also filed a motion for a temporary restraining order and preliminary injunction.

In a statement on Boston.com, New York Times spokeswoman Catherine Mathis said the company is simply doing what hundreds of other news sites already do -- aggregate headlines and snippets of relevant stories published elsewhere on the Web -- and believed GateHouse's lawsuit was without merit:
"Far from being illegal or improper, this practice of linking to sites is common and is familiar to anyone who has searched the Web," Mathis said. "It is fair and benefits both Web users and the originating site."

Update:

12/22/08 - Judge Young denied GateHouse's request for a temporary restraining order and set a hearing on plaintiff's motion for a preliminary injunction for January 5, 2009.  The court indicated that the motion for a preliminary injunction will be "collapsed with a trial on the merits."

12/30/08 -  Parties filed a joint motion (ordered by the Court) to set a trial date of January 26, 2009.  Fact discovery is to be completed by January 16.

1/12/09- GateHouse filed an Unopposed Motion for Ruling on Jurisdiction, arguing that the Court has jurisdiction over its copyright claims even though the Copyright Office has not yet issued a certificate of copyright for the works at issue.

1/16/09 - New York Times Company filed a Motion To Join Globe Newspaper Company, Inc. and Boston Globe Electronic Publishing, Inc., and Leave To File Answer, Affirmative Defenses And Counterclaims including a proposed Answer, Affirmative Defenses and Counterclaims.

1/21/09 - Court granted (without a written order) the New York Times Company's motion for joinder.

1/22/09 - GateHouse filed a proposed amended complaint.

1/26/09 - Case dismissed due to settlement.  The New York Times has posted a copy of the Letter Agreement between the parties.

1/27/09 - Rick Daniels, president of GateHouse Media New England, sent a memo to GateHouse employees describing the company's reasons for settling the lawsuit.

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GateHouse v NY Times Co.: Not So Simple After All

One of the most intriguing current media legal cases pits GateHouse Media, which owns a pile of newspapers in New England (and elsewhere) against the New York Times Co., owner of the Boston Globe and Boston.com. I’ve been looking at this from both sides’ perspectives, and this is not as simple as it looks on first glance.

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Huffington Post Criticized For Copying Content

Wired/Epicenter alerts us to the controversy swirling around the Huffington Post's new Chicago edition.  Last week, Whet Moser of the Chicago Reader caught the Huffington Post using an entire Rea

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Copyright, Politics, and McCain's Request for Special Treatment

Last week we reported that the McCain campaign had sent a letter to YouTube complaining that its campaign videos were being removed from YouTube as a result of unjustified DMCA takedown requests sent by news organizations whose footage was included in the videos.

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German Courts Say Nein to Google Image Search

Google appears to be learning the hard way that there's "kein fairer Gebrauch" (no fair use) in Germany.  The Internet search giant lost two German copyright decisions Monday, as the courts ruled that the thumbnail images that appear in Google Image Search violate German copyright law.  Bloomberg reports:

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YouTube Anti-Scientology Takedowns and Putbacks

The Electronic Frontier Foundation reports on some good news, and bit of bad news, regarding the blizzard of DMCA takedown notices sent to YouTube on behalf of the Church of Scientology.

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Judge Rejects Fair Use Defense in Harry Potter Lexicon Case, J.K. Rowling Recovers Her Plums

In a long-awaited decision in the case of Rowling v. RDR Books, a federal judge in New York has ruled in favor of J.K. Rowling and Warner Bros.

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California Court Warns Copyright Bullies Not to Ignore Fair Use

A federal district court in California held on Wednesday that copyright owners must consider fair use before sending DMCA takedown notices to avoid liability for abuse of the law's procedures. The ruling is a huge victory for free speech advocates and may have far-reaching implications for the way content owners police infringement online. 

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Center for Social Media Launches Its Code of Best Practices in Fair Use for Online Video

Today, the Center for Social Media at American University released its Code of Best Practices in Fair Use for Online Video, a publication meant to help online video creators, service providers, and copyright holders to interpret the copyright doctrine of fair use.

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Associated Press v. Drudge Retort

Date: 

06/10/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Rogers Cadenhead; Drudge Retort

Type of Party: 

Media Company

Type of Party: 

Individual

Legal Counsel: 

Ron Coleman - Goetz Fitzpatrick LLP (GC for Media Bloggers Association)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Material Removed

Description: 

On June 10, 2008, the Associated Press ("AP") sent a takedown request under the Digital Millennium Copyright Act to Rogers Cadenhead, the founder of Drudge Retort, a liberal alternative to (and parody of) the well-known Drudge Report, demanding that he remove six user-submitted blog entries and one user comment on the site that contained quotations from AP articles.  

The Drudge Retort is a community site similar to Digg and Reddit, allowing its users to contribute blog entries, comments, and links to interesting news articles. According to Cadenhead, none of the six posts republished the full text of an AP story; instead, each contained quotes ranging in length from 33 to 79 words (although the posts have been removed, Cadenhead has provided a summary of them here).

While the June 10, 2008 takedown request from AP only mentions copyright infringement as a justification for the removal, a June 3 letter sent by AP's Intellectual Property Governance Coordinator, Irene Keselman, also asserted a "hot news" misappropriation claim:

Please note that contrary to your assertion, AP considers that the Drudge Retort users' use of AP content does not fall within the parameters of fair use. The use is not fair use simply because the work copied happened to be a news article and that the use is of the headline and the first few sentences only. This is a misunderstanding of the doctrine of "fair use." AP considers taking the headline and lede of a story without a proper license to be an infringement of its copyrights, and additionally constitutes "hot news" misappropriation.

It doesn't appear that AP is continuing to pursue a "hot news" misappropriation claim against Drudge Retort.  This little known legal doctrine, which saw its genesis in 1918 in International News Service v. Associated Press, 248 U.S. 215 (1918), seems to have fallen out of favor because the 1976 Copyright Act preempts all legal and equitable rights that are equivalent to the exclusive rights offered by federal copyright law. As a result, in National Basketball Ass'n v. Motorola, 105 F.3d 841, 844 (1997), one of the few cases to address a "hot news" claim, the Second Circuit set an exceptionally high standard for such claims to be viable, requiring, among other things, that the information be time-sensitive; the defendant be in direct competition with the plaintiff; and the continued publishing of the "hot news" would so reduce the plaintiff's incentive to produce the product or service that its existence or quality would be substantially threatened.

On June 16, 2008, the New York Times reported that AP was reconsidering its request while it creates a set of guidelines for bloggers and websites that excerpt AP material.

Update:

On June 20, 2008, Cadenhead and AP announced that they had settled their copyright dispute.  As of June 23, the six posts remain inaccessible.

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Associated Press Sends DMCA Takedown to Drudge Retort, Backpedals, and Now Seeks to Define Fair Use for Bloggers

Last week, the Associated Press ("AP") sent a takedown request under the Digital Millennium Copyright Act to Rogers Cadenhead, the founder of Drudge Retort, a liberal alternative to (and parody of) the well-known Drudge Report, demanding

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Metallica v. The Quietus

Date: 

06/01/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Quietus.com; MetalHammer.co.uk; Rock-Sound.net; Bob Mulhouse

Type of Party: 

Organization
Large Organization

Type of Party: 

Individual
Organization

Publication Medium: 

Blog
Website

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Representatives of rock band Metallica demanded that websites and blogs take down reviews of unreleased songs from the band's forthcoming album. The band's management had played six songs from the album for a group of U.K. music journalists and bloggers, including writers for Metal Hammer, Rock Sound, The Quietus, Classic Rock, and others, at a listening party in London on June 04, 2008. According to one attendee, those invited were not asked to sign a non-disclosure agreement.

Following contact from a third party representing QPrime, Metallica's management, at least three sites – Metal Hammer, Rock Sound, and The Quietus – removed their reviews. Classic Rock edited their review to remove any specific information about the songs or the album's sound. The Listening Post cites sources as saying the band's management wanted the reviews pulled because they were based upon an early mix of the album.

On June 11, 2008, Metallica posted a message to their website stating that the takedowns had been instigated by QPrime without the band's permission. The message included links to reviews from Kerrang!, Metal Hammer, and The Quietus. Following the June 11 posting, all of the reviews were placed back online.

 

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