Fox Demands Site Give Up Fair Use Rights, Run Special Fox Ads, To Do Any Commentary

from the fair-use-doesn't-work-that-way dept

Here's a follow up to our story last Friday about Progress Illinois having its YouTube account restored. The YouTube account had been taken down following multiple DMCA takedown notices from Fox, leading YouTube to institute its usual policy of shutting such accounts down. Progress Illinois sent a counternotice, and after Fox failed to sue the activist group, the account was turned back on. Paul Alan Levy points us to some more troubling details about the discussions between Progress Illinois and Fox. Apparently, Fox sought to have Progress Illinois waive its fair use rights on all future Fox material and demanded that it be allowed to run ads on the Progress Illinois site in exchange for allowing the content to be placed on YouTube. On top of this, Levy notes that Fox is apparently preparing a deal with another video site (that will include its desired ads), which Fox will apparently demand sites use in reporting on Fox News reports. As Levy suggests, Fox may then use this to suggest that any "unauthorized" clip of a Fox broadcast fails the "impact on the market" prong of the fair use test. If true, that could create quite an interesting test case the first time Fox employs that argument on a site doing commentary. Its lawyers do know that failing one prong of the test doesn't automatically disqualify a fair use defense, right?

Filed Under: commentary, copyright, demands, fair use
Companies: eff, fox, progress illinois, public citizen

Declining To Sue Is Hardly An Acceptable Solution For DMCA Takedown Response

from the still-problematic dept

Earlier in January, the EFF and Public Citizen called attention to a local Fox affiliate using a DMCA takedown notice to remove a video that was used by an activist group, Progress Illinois, to comment on the broadcast. It was almost certainly fair use, but thanks to the way the DMCA works, even with a counternotice, YouTube is required to keep the video down for at least 10 business days. Considering that it was being used for commentary on current events, the fact that Fox is able to keep the content down for 10 business days should be seen as a problem. Anyway, as (former Fox lawyer) Ben Sheffner notes, Fox appears not to have filed a lawsuit in those 10 days, and thus, YouTube has restored Progress Illinois' account. Of course, as Sheffner also points out, Fox could still sue Progress Illinois at a later date, despite its failure to do so during the counternotice response window. Again, the whole scenario is problematic. Fox gets to take this video down at a time when it's most useful for commentary purposes, and then retains the right to sue at a later date without ever having to make a case for why the takedown was legitimate. It seems like there should be clarity that, if a company that issues a takedown does not sue following a counternotice, it should be seen as approval that the video is not infringing.

Filed Under: decline to sue, dmca, takedowns
Companies: eff, fox, progress illinois, public citizen