awarded $35.00 in actual damages, and declined to award broad injunctive relief and attorney's fees.

On appeal, the Eleventh Circuit upheld the district court's finding that fair use was lacking, but reversed the denial of an injunction and granted permanent relief. 26

In determining that defendant's use was not fair, the Eleventh Circuit considered that the use was commercial,

27

that

24 (...continued)

NO. 1733, 94th Cong., 2d Sess. 73 (1976), but does not extend to documentary or magazine-format public affairs programs. H.R. REP. NO. 1476, 94th Cong., 2d Sess. 77 (1976).

26 Pacific and Southern Co., Inc. v. Duncan, 744 F.2d 1490, 1493 (11th Cir. 1984), cert. denied, 471 U.S. 1004 (1985). The Eleventh Circuit agreed with the district court that Duncan's service did not qualify as an archive, id. at 1494 n.6, but added that the service could also not be likened to newspaper clippers, who purchase the copies they sell to clients. Id. (citations omitted). However, the appeals court disagreed with the lower court's fair use analysis, concluding that the four section 107 factors should have been considered. Id. at 1495 ("The statute uses mandatory language to the effect that in a fair use determination, the 'factors to be considered shall include' ... the four listed. The preamble merely illustrates the sorts of uses likely to qualify as fair uses under the four listed factors") (emphasis in original). "The approach taken by the district court," the Eleventh Circuit concluded, "impedes the ability of the fair use doctrine to function as a 'rule of reason.'" Id.

27 Id. at 1496 ("The purpose and character of TV News Clips' use of WXIA's work heavily influences our decision in this case. TV News Clips copies and distributes the broadcast for unabashedly commercial reasons despite the fact that its customers buy the tapes for personal use.").

28

30

it was neither productive nor creative in any way, that it damaged the potential market for WXIA's broadcasts, 29 and that a substantial portion of the whole copyrighted work was taken. The court also analyzed the nature of the copyrighted work, concluding that this factor favored favored TV News Clips since the definition of fair use could be affected by the societal importance of news. The appeals court rejected defendant's governmental

31

28 Id. ("It does not analyze the broadcast or improve it at all. Indeed, WXIA expressed concern over the technical inferiority of the tapes. TV News Clips only copies and sells. As the uses listed in the preamble to Section 107 indicate, fair uses are those that contribute in some way to the public welfare.").

29

Id. ("The fact that WXIA does not actively market copies of the news programs does not matter, for Section 107 looks to the 'potential market' in analyzing the effects of an alleged infringement. Copyrights protect owners who immediately market a work no more stringently than owners who delay before entering the market. TV News Clips sells a significant number of copies that WXIA could itself sell if it so desired; therefore, TV News Clips competes with WXIA in a potential market and thereby injures the television station. This evidence is reinforced by a presumption established in Sony that in Sony that a commercial use use naturally produces harmful effects. The actual harmful effect, along with the presumption, undermines any fair use defense") (citation omitted).

30 The Eleventh Circuit agreed with the district court that the copied feature stood alone as a copyrighted work, so that defendant copied the entire work. But even if the feature were not alone protectible, the appeals court found that defendant copied the entire broadcast on a daily basis, and that by bringing a suit for injunctive relief, as well as damages, WXIA challenged the entire practice of copying and selling news stories, not just the isolated feature at issue in the litigation. Id. at 1497.

licensee 32

33

and First Amendment defenses. Finally, it held that the district court had abused its discretion in denying injunctive relief. 34

32 Defendant argued that because WXIA was a governmental licensee it had a duty to provide public access to newscasts, and that fair use should be used to prevent the restriction of public access. The court concluded that the station fulfilled its public obligations by allowing interested parties to view the program after its broadcast. Id. at 1498.

33 The appeals court rejected both of appellant's arguments, that enforcement of the copyright (1) destroys and suppresses evidence of potential use in a defamation action against the station and (2) denies the public its right of access to broadcast material. The court concluded that the possibility of discouraging defamation actions was imaginary in this case, and that Duncan did not offer any access that the station could not provide. Id. The court also rejected a corollary argument, that the station's copyright did not further the ends of the Copyright Clause because the station destroyed its broadcast videotapes, and the public therefore did not benefit from its creative efforts. The Eleventh Circuit concluded that the public did benefit from WXIA's works, and that copyright owners are not required to provide the most complete public access possible. Id. at 1498-99.

34 Id. at 1499 "Unless it can obtain an injunction, WXIA can only enforce its copyrights against TV News Clips by finding out which stories have been copied and sold, registering those stories, and bringing many different infringement actions against TV News Clips. Each infringement action would yield a rather small damage recovery. This is a classic case, then, of a past infringement and a substantial likelihood future infringements which would normally entitle the copyright holder to a permanent injunction against the infringer....".

The district court's denial of injunctive relief was wrong, the Eleventh Circuit reasoned, for three reasons. First, although the post-broadcast market was unimportant to WXIA as a creative incentive, requiring future infringement actions did not change the incentive. Id. Second, the First Amendment did not prevent an injunction, since the scope of liability affects First Amendment interests, not the choice of relief. Id. at 1499-1500. Third, WXIA did not abandon its copyright in the feature by erasing (continued...)

On remand, the district court held that it would not exempt from the injunction portions of broadcasts on a subject/format basis, and permanently restrained TV News Clips from copying or selling copies of WXIA's broadcast news programs, in whole or in part.

35

On appeal, the Eleventh Circuit affirmed the district court's permanent injunction, rejecting at the outset, Duncan's arguments: that the injunction could not protect future news broadcasts absent copyright registration, and that it chilled public access to the news. However, the appellate court clarified that Duncan could still tape uncopyrightable aspects of the broadcasts, and make copies for her personal use.

36

37

Duncan's monitoring service was also preliminarily enjoined in Georgia Television v. TV News Clips of Atlanta, where defendants copied and sold to the City of Atlanta portions of 27 different WSB-TV

38

broadcast news programs.

Following cross

34 (...continued)

the videotape of the entire broadcast, the entire audiotape survived, along with portions of the videotape. Id. at 1500.

35 Pacific and Southern Company, Inc. v. Duncan, 618 F.Supp. 469, 471 (N.D. Ga. 1985).

36 Pacific and Southern Co., Inc. v. Duncan, 792 F.2d 1013, 1014 (11th Cir. 1986).

38 718 F.Supp. 939, 944-45 (N.D. Ga. 1989). The district court noted that injunctions may be issued even against future

(continued...)

motions for summary

judgment, the district court granted

plaintiff's motion for permanent injunction, damages and attorney's

fees.

39

Finally, in Cable Cable News Network V. Video Monitoring Services, 40 the district court granted a preliminary injunction, enjoining VMS "from copying or selling copies of any of CNN's programming either in whole or in part." “1 CNN had registered only the "Crossfire" program. VMS taped CNN continuously, around the clock. A three-judge panel of the Eleventh Circuit 42 initially

38(...continued)

copying of works not yet created. Id. at 945 ("[A]n injunction may issue for the copying of WSB-TV's broadcasts, which are not the subject of the present litigation. The fact that WSB-TV's future news broadcasts are not presently created does not preclude injunctive relief against defendants' videotaping these copyrighted broadcasts because 17 U.S.C. $502 (a) provides for injunctions to prevent infringement of copyright and not necessarily the registered copyright that gives rise to the action") (citations omitted).

39 This time, unlike in the earlier action brought by WXIA, the court awarded attorney's fees to WSB, as well as $108,000.00 in actual damages. Id. at 1376-77.

40

See discussion in 940 F2d 1471 (11th Cir. 1991).

42 Cable News Network v. Video Monitoring Services, 940 F.2d 1471 (11th Cir. 1991). In overturning the lower court's grant, the Eleventh Circuit noted that it was not bound by its earlier holding in the second WXIA case, since VMS was acting as a broadcast monitor, an issue that was never addressed in the WXIA litigation, and that the intervening Supreme Court decision in Feist Publications, Inc. v. Rural Tele. Serv. Co., 499 U.S. 1282 (1991), altered the appropriate injunctive relief. Network, 940 F.2d at 1477.

111 S.Ct. Cable News