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s. 1805 represents a drastic departure from these

precedents.

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

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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

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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 WSB

TV 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

public affairs programs of WSB-TV.

The Court considered TV News

clips' claim that its activities constituted fair use and,

weighing the four factors in Section 107 of the Copyright Act, rejected the defendant's fair use claim. 4/

The District Court subsequently granted WSB-TV's motion

for summary judgment against TV News Clips on its copyright

infringement claims.

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)

("WSB-TV").

After careful consideration of the facts presented

to it, the Court rejected TV News Clips' claim that its

activities constituted fair use.

The Court made permanent the

injunction granted earlier, and awarded WSB-TV costs and

attorneys fees and statutory damages.

Finding TV News clips'

infringement of WSB-TV's copyrights to be willful, the court

stated:

This court finds that, as a result of the WXIA I litigation, defendants clearly were aware of the unlawfulness of their activities. Defendants admit that despite the outcome of WXIA I and despite the entry of a preliminary injunction in this case, defendants have continued to tape and sell copies of other stations' news broadcasts. In blatant disregard of the import of the previous litigation against defendants, defendants admit that "until (TV News clips) is able to reach a mutually satisfactory arrangement with broadcasters, or until (TV News clips) is no [sic] ordered by a court of law, [it] will

4/ TV News clips was the defendant in a previous copyright infringement case. See Pacific and Southern Co. d/b/a WXIA-TVV. Duncan d/b/a TV News Clips, 572 F. Supp. 1186 (N.D. Ga. 1983), aff'd in part and rey'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) ("WXIATV"). The court in WXIA-TV also rejected TV News Clips' claim that its activities constituted fair use.

continue [its) monitoring activities." Defendants' Response to "plaintiff's statement of Material Facts to Which There is No Genuine Issue to be Tried" at 12.

These responses indicate that defendants will continue to violate the law, requiring numerous copyright owners to bring successive actions in this and other courts, creating unnecessary litigation, and hoping that by sheer obstinance defendants will be able to outlast prospective plaintiffs.

Id. at 1376-77.

TV News Clips' appeal of the permanent injunction and damages award is currently pending in the Eleventh Circuit.

OTHER VIDEO MONITORING LITIGATION

DENIES FAIR USE DEFENSE

A case similar to WSB-TV, Cable News Network, Inc. y.

Video Monitoring Services of America, Inc., 723 F. Supp. 765

(N.D. Ga. 1989) ("CNN"), was decided shortly after WSB-TV.

Like

the court in WSB-TV, the District Court in CNN held that the

defendant video Monitoring Services' ("VMS") videotaping and sale of CNN's broadcast programming constituted copyright

infringement, and rejected the defendant!s claim of fair use.

The District Court granted CNN a preliminary injunction, and later made the injunction permanent., VMS's appeal of the

permanent injunction is also pending in the Eleventh Circuit.

Other courts that have considered the issue have also found that

video monitoring is not a fair use of copyrighted television news

and public affairs programs.

See e.g., Pacific and Southern Co.

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 rey'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); KCNC-TV v. Broadcast Information Services, Inc., 717

F. Supp. 1449 (D.Colo. 1988).

VIDEO MONITORING IS NOT FAIR USE
AND SHOULD NOT BE EXEMPTED BY LAW

Court cases to date have fundamentally validated the

right of producers of news and public affairs programs to protect their copyrighted programs. These cases recognize that although creators of news and public affairs programs do not own the news,

they do own their expression of the news. This most basic of copyright principles is challenged by the essence of the proposed legislation.

The fair use doctrine embodied in Section 107 of the

Copyright Act has enabled courts, through its flexible balancing

test, to make fair use determinations on a case by case basis.

Section 107 recognizes that each case brings with it a different

set of facts, and that no one factor will be determinative in

every case. Section 107 is not intended to provide an exhaustive list of "fair uses." Indeed, the section is structured in recognition of the fact that rarely will any activity qualify as a fair use in all situations.

In the case of video monitoring, courts have applied

the fair use test in a manner consistent with prevailing fair use precedent. Courts have uniformly, and we add, properly rejected claims by video monitors that their activities qualify for a

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