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using broadcast programming monitoring was not expressly enumerated by Congress when it enacted the
Nevertheless, broadcast monitoring
services are, and should rightfully be considered to be,
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:
A searching analysis of broadcast monitoring
services under the four factors set out in Section 107
demonstrates that news
es are the type
activity that congress intended the fair use doctrine to
The Effect Upon the Potential Market for or
The Supreme Court has held that the sole
"purpose of copyright is to create incentives for creative
Therefore, the most important element of any
fair use analysis of broadcast monitoring services is
Sony Corp. of America v. Universal City Studios,
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
shares and that enable them to sell advertising at rates
that escalate with the size of the audience.
monitoring services, by definition, have no impact on the
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
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
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
Congress specifically intended
that the relative inaccessibility of a work to the public should be a factor in