COMMENTS OF COX ENTERPRISES, INC. Cox Enterprises, Inc.1/ ("Cox"), through its The subsidiary Georgia Television Company, licensee of WSB-TV, Atlanta, Georgia ("WSB-TV"), has been involved in the video monitoring issue for several years. Since 1988, WSB-TV has been the plaintiff in a copyright infringement suit against a video monitor, TV News Clips of Atlanta, Inc. ("TV News Clips"). federal district court in the case like the court in every copyright infringement case against a video monitor to date held that TV News Clips' unauthorized, systematic copying and sale of WSB-TV's copyrighted news programs infringes the copyrights in the programs. The court rejected TV News Clips' claim that its activities constitute fair use. 2/ This holding is - consistent with prevailing fair use precedents. 3/ 1/ - Cox is a diversified media company that owns television stations, radio stations, newspapers and cable systems in markets across the country. 2/ Georgia Television Company d/b/a WSB-TV v. TV News Clips of Atlanta, Inc., 19 U.S.P.Q.2d 1372 (N.D.Ga. 1991). TV News Clips' appeal of the district court decision is pending in the Eleventh Circuit. 3/ Sony Corp. of America v. Universal Studios, Inc., 464 U.S. 417, 451 (1984) (commercial purpose makes a use "presumptively unfair"); Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985); Wainwright Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir. 1977); MCA, Inc. v.\ Wilson, 677 F.2d 180 (2d Cir. 1981); Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171 (5th Cir. 1980); Pacific and Southern Company, Inc. d/b/a WXIA-TV v. Duncan d/b/a TV News Clips, 572 F.Supp. 1186 (N.D.Ga. 1983), aff'd in part and rev'd in part, 744 F.2d 1490 (11th Cir. 1984), cert. denied, 471 U.S. 1004 (1985), on remand, 618 F.Supp. 469 (N.D.Ga. 1985), aff'd, 792 F.2d 1013 (11th Cir. 1986); Quinto v. Legal Times, 506 F.Supp. 554 (D.D.C. 1981). precedents. S. 1805 represents a drastic departure from these Indeed, video monitors seek an amendment to Section 107 of the Copyright Act precisely because they know that their activities are illegal. Having failed in the courts, video monitors seek from Congress a special exemption from traditional copyright liability. For the reasons discussed below, Cox opposes S. 1805. WSB-TV'S LAWSUIT AGAINST A VIDEO MONITOR IS PENDING IN FEDERAL APPEALS COURT WSB-TV creates and broadcasts television newscasts five times daily on weekdays and four times a day on the weekends. WSB-TV also produces numerous public affairs programs every year. As is true of hundreds of broadcast licensees, the station invests enormous creative and financial resources in these programs. It does so in reliance on the fact that its creative work product will be protected by the United States copyright laws. In 1986, WSB-TV learned that a video monitor, TV News Clips, was, without permission from the station, videotaping WSBTV's programming and aggressively marketing copies of the programs, or portions of the programs, to the public. According to court testimony, TV News Clips systematically recorded every minute of WSB-TV's news and public affairs programs. TV News Clips then made efforts to identify persons who appeared in segments of WSB-TV programming in order to sell clips to those persons. TV News Clips charged $20 $65 for short clips, and also fixed project and monthly rates with return customers. These fees were received without any effort or interest on TV News Clips' part to clear rights or compensate the owners of the copyrights in the programs. By way of additional background, WSB-TV had experienced, on a number of occasions, problems with misuses of its copyrighted programs by third parties who took and used WSBTV material without the permission of the station. One incident of particular concern to the station involved use of a WSB-TV news story by a political candidate in a way that implied that the station endorsed the candidate. In an effort to gain control over its copyrighted programs and to prevent such misuses of its material, WSB-TV put TV News Clips on notice for more than one year that unauthorized copying and marketing of its programming was illegal. Throughout, TV News Clips maintained its unfettered, fair use right to tape and sell WSB-TV programming. Finally, WSB-TV filed a lawsuit against TV News Clips for infringement of the copyrights in its news and public affairs programs. After a two day hearing on the merits, the District Court for the Northern District of Georgia, having heard extensive testimony about TV News Clips' method of doing business, granted WSB-TV's motion for a preliminary injunction. Georgia Television Company d/b/a WSB-TV v. TV News Clips of Atlanta, Inc., 718 F.Supp. 939 (N.D.Ga. 1989). The injunction prohibited TV News Clips from copying or selling the news and |