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to the original programming. 11

Presumptively, then, broadcast

monitoring is not a fair use.

2.

Broadcast Monitoring Case Law

In Sony Corp. of America v. Universal city Studios, Inc., 12

the Supreme Court held that the home, noncommercial videotaping for

10(...continued) monitoring product not a copy of the entire broadcast, the entire work is duplicated during the initial videotaping, which is later edited to suit client requests. Such intermediate copying is generally infringing. See Walt Disney Productions V. Filmation Associates, 628 F. Supp. 871, 876 (C.D. Cal. 1986) (Where a "work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work"). Walker v. University Books, Inc., 602 F.2d 859, (9th Cir. 1979) ("[T]he fact that allegedly infringing copy of a protected work may itself be only an inchoate representation of

final product to be marketed commercially does not

itself negate the possibility of infringement...."); Johnson Controls V. Phoenix Control Systems, 886 F.2d 1173, 1177 (9th cir. 1989) (unnecessary for district court to review final version of defendant's software in infringement action).

864

an

some

in

11

Although all of the factors are apparently of equal weight, the Supreme Court has stated in dicta that the "last factor is undoubtedly the single most important element of fair use. Harper & Row, 471 U.S. at 566. It may be presumed that for some viewers, the broadcast monitoring service provides a substitute for the only reason that the viewers watch news programming

-- to see their names and likenesses. It may also be presumed that harm flows to copyright owners from commercial news monitoring, since the owners' must compete in the video clip market, whether they exploit that use or not. See Sony, 464 U.S. at 451 ("If the intended use is for commercial gain, that likelihood (of harm] may be presumed.").

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timeshifting purposes of free over-the-air television broadcasting is a fair use. It is important to note, however, that Betamax is limited to noncommercial copying of free broadcast

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use

or

television, and authorizes neither audiotaping, nor even librarying of videotapes. Thus, it is not a fair

to audiovideotape news and other programming for commercial purposes. Nor is it permissible to tape cable television and other pay services.

Several courts addressing the specific issue

of

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WXIA-TV sued defendant TV News clips for reproducing a one minute

13

The Sony Court defined timeshifting as "the practice of recording a program to view it once at a later time, and thereafter erasing it." Id. at 417, 423.

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a

In librarying, "the user records a program in order to keep it for repeated viewing over

longer term (than timeshifting)." 464 U.S. at 459 (Blackmun, J., dissenting). News clips, for example, libraries its tapes for one month after the pertinent broadcast. 572 F. Supp 1186, 1189 (N.D. Ga. 1983).

16

Pacific & Southern Co. v. Duncan, 220 U.S.P.Q. 859 (N.D. Ga. 1982), 572 F. Supp. 1186 (N.D. Ga. 1983), aff'd, 744 F.2d 1490 (11th Cir. 1984); 618 F. Supp. 469 (N.D. Ga. 1985), aff'd, 792 F.2d 1013 (11th Cir. 1986); Georgia Television Company V. TV News Clips of Atlanta, Inc., 718 F. Supp. 939 (N.D. Ga. 1989), 19 U.S.P.Q. 2d 1372 (N.D. Ga. 1991); Cable News Network, Inc. V. Video Monitoring Services of America, Inc., 723 F. Supp. 765 (N.D. Ga. 1989), rev'd, 940 F.2d 1471 (11th Cir. 1991), vacated, 949 F.2d 378 (11th Cir. 1991), remanded, 959 F.2d 188 (11th Cir. 1992).

17

220 U.S.P.Q. 859 (N.D. Ga. 1982).

45 second feature story broadcast during plaintiff's 90 minute news

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program.

Plaintiff sought to enjoin the selling and other

distribution of its broadcasts. Defendant filed a cross motion for

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Following a bench trial, the court determined that the newscast was fixed and properly registered. The court then held

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that defendant's copying of the feature was a total reproduction, and not a permissible attempt to relate the substance of the

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Defendant's television news clipping service monitored and recorded television news, and sometimes public affairs programs. Defendant provided copies of news stories to its clients and solicited new clients from those appearing on programs. Duncan, 220 U.S.P.Q. at 860.

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Pacific and Southern Co., Inc. V. Duncan, 572 F. Supp. 1186, 1190-91 (N.D. Ga. 1983).

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Id. at 1193 ("While the Court finds Defendant's argument theoretically provocative, it has little applicability to the question of whether copying the fitness trail feature infringed

(continued...)

23

23 (... continued) Plaintiff's copyright. The fitness trail feature is a 'soft news' piece which, though informational, hardly fits in a category with (hard news films with significant public interest like the) film of the My Lai massacre. Moreover, Plaintiff has preserved the original film; copy is available to anyone who wants Indeed, the fitness trail itself is available for viewing. Thus, the First Amendment offers no defense to Ms. Duncan.").

а

one.

24

case

Using a novel fair use analysis, the court reasoned that the factors listed in subparagraphs (1) through (4) are weighed only when a

involves the particular uses listed in the preamble. In determining that defendant's use was copying for subsequent sale, the court concluded that none of the listed uses were implicated, so balancing the four factors was not necessary. Id. at 1195. The court also noted that defendant's copying was not inherently productive or creative, id., and, in dicta, observed that defendant did not qualify for the television news archives exemption in section 108 (f).

The exemption applies to the "reproduction and distribution by lending of a limited number of copies and excerpts by a library or archives of an audiovisual news program...." 17 U.S.č. 9108 (f) (3). The exemption applies where:

(1) the reproduction or distribution is made
without any purpose of direct or indirect
commercial advantage;
(2) the collection of the library or archives
are (i) open to the public, or (ii) available
not only to researchers affiliated with the
library or archives or with the institution of
which it is a part, but also to other person
doing research in a specialized field; and
(3) the reproduction or distribution of the
work includes a notice of copyright.

17 U.S.C. $108(a).

The legislative history of section 108 indicates that the term "audiovisual news program" applies to daily newscasts of local, regional and national television networks, interviews about current events, and on-the-spot coverage of news events, H.R. CONF. REP.

(continued...) awarded $35.00 in actual damages, and declined to award broad injunctive relief and attorney's fees. 25

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., 20 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).

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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

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

'rule of reason."

Id.

a

as

а

27

Id. at 1496 ("The purpose and character of TV News clips' use of WXIA'S work heavily in ences 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.").

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