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using broadcast programming monitoring was not expressly enumerated by Congress when it enacted the

Copyright Act.

Nevertheless, broadcast monitoring

services are, and should rightfully be considered to be,

fair uses.

Broadcast News Monitoring Services

Are A Fair Use

Broadcast news monitoring services fall within

the core of activities protected by the fair use doctrine. In fact, the ultimate purposes of monitoring are precisely

those defined in the first sentence of Section 107:

"criticism, comment,

teaching

scholarship or

research.

A searching analysis of broadcast monitoring

services under the four factors set out in Section 107

demonstrates that news

monitoring serv

es are the type

activity that congress intended the fair use doctrine to

protect.

1.

The Effect Upon the Potential Market for or
Value of the Work

The Supreme Court has held that the sole

"purpose of copyright is to create incentives for creative

effort. 014

Therefore, the most important element of any

fair use analysis of broadcast monitoring services is

Sony Corp. of America v. Universal City Studios,
Inc., 464 U.S. 417, 450 (1984).

whether they diminish the incentive of broadcasters to

create news programming.

Uses that have "no demonstrable effect on the

market for, or the value of, the copyrighted work" need not be prohibited. 5 In such situations, no infringement

need be found and no injunction need issue to protect the

author's incentive to create.

Because broadcast news

monitoring services have no adverse economic impact on broadcast news programming, or on the incentive to produce

the news, a proper application of this factor cuts

strongly in favor of concluding that such services are a

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shares and that enable them to sell advertising at rates

that escalate with the size of the audience.

Broadcast

monitoring services, by definition, have no impact on the

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for advertising revenues.

They have no actual or

potential negative effect on the market for, or value of,

the advertising time sold by broadcast stations.

For example, if a broadcast monitoring service

in Texas provides a compilation of programs from Texas

news broadcasts to a client in New York, the Texas news

station has not been negatively affected in any way. The monitoring service did not cut into the Texas station's

audience and did not siphon revenues that would otherwise

have gone to the broadcaster.

In fact, the Texas

broadcaster may benefit from increased exposure to potential advertisers (who may be impressed by its news programming) who are geographically distant and temporally

removed from the place and time of the broadcast itself.

Moreover, broadcasters are not, and have no

demonstrable interest in, exploiting the market for monitored broadcasts programming. They do not actively sell segments of their programs in their local markets,

let alone nationally.

They maintain no standing orders

from clients nor do they monitor or log other stations' programs. Thus, broadcast monitoring services have no

impact on any potential market that broadcasters might

seek to enter.

In short, broadcast monitoring services do not

diminish in any way the value of or market for any

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Supreme Court has acknowledged that "[c]opying a news broadcast may have a stronger claim to fair use than copying a motion picture."6 Similarly, the nature of a

news program also argues in favor of finding that broadcast news monitoring services should be viewed as a

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o News programs, unlike works of entertainment, lose much of their

value as soon as they are broadcast.

The value of news lies in its

timeliness; there is no significant

aftermarket for news.

o News programming is ephemeral; it becomes inaccessible immediately after it is

broadcast.

Congress specifically intended

that the relative inaccessibility of a work to the public should be a factor in

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