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.
The dispute began back in November 2008, when Fox sent a letter to YouTube demanding the takedown of a video, Beavers On Back-Door Pay Raises, that Progress Illinois had uploaded to YouTube and embedded in a blog post examining how some Cook County commissioners were using their expense accounts for personal gain. The video contained a 26-second clip from a FOX Chicago newscast that had aired a week earlier.
According to a post on the Progress Illinois website announcing the shutdown, Editor Josh Kalven wrote:
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.
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 (DMCA), requesting that the three videos be restored and its account reinstated.
While I haven't been able to view the videos myself, it certainly sounds like Progress Illinois' use of the Fox clips would be fair use under copyright law. Nevertheless, this isn't the first time Fox has disregarded the fair use doctrine when sending takedown notices to YouTube.
Back in October, 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, including Fox, whose footage was included in the videos. The campaign's general counsel, Trevor Potter, argued that the videos only incorporated a few seconds of footage, which he said was permitted under fair use, and asked YouTube to stop automatically removing campaign videos in response to takedown requests.
As a result of the McCain campaign's letter, we joined EFF, ACLU, and a number of other public interest groups in sending an open letter to Fox, CBS, NBC, and the Christian Broadcasting Network (CBN) calling on the networks to stop stifling political debate on the Internet with overreaching copyright claims. We also sent a letter to YouTube on October 20, 2008, proposing two measures it should adopt to protect everyone's free speech rights, including human review of all DMCA counter-notices and greater respect for fair use rights. We never received a response from YouTube.
As we expected, this issue hasn't gone away. 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. As Josh Kalven notes:
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.
For more information on this dispute, see our legal threats database entry Fox Television WFLD-TV v. Progress Illinois.