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Why are a few broadcasters meeting with such

success in using lawsuits or threatening letters to drive

broadcast monitors out of business?

To date, and in the

cases that have been decided, courts have misapplied the fair use doctrine to conclude that monitoring services are liable for copyright infringement. Instead of properly

balancing the public benefits from and economic impact of

monitoring against the broadcasters' incentives to create,

courts have focused largely on the fact that news

monitoring services are engaged in a commercial activity.

They have either ignored or wrongly applied the other fair

use factors.

In one of the earlier cases involving broadcast

news monitoring services, for example, one appellate court

leaned heavily on the fact that merely because a news monitor was a commercial business, it infringed on a potential the broadcast monitoring market for broadcasters. 7

The flaw in this reasoning is that it

fails to understand the respective markets and functions

of broadcasters and news monitoring services. As noted, broadcast monitoring services and broadcasters perform

7.

Pacific & Southern Co. v. Duncan, 572 F. Supp. 1186
(N.D. Ga. 1983), aff'd and rev'd in part, 744 F.2d
1490 (11th cir. 1984), cert. denied, 471 U.S. 1004
(1985).

entirely different services.

One produces and airs news

for immediate consumption, the other monitors, excerpts,

compiles and sends news programs to local or distant

locations for later viewing.

There is no actual or

potential competition between the two.

The Supreme Court has correctly interpreted the

fair use doctrine to mean that courts should not "inhibit

access to ideas without any countervailing benefit."8 Because broadcast monitoring services have no real or potential negative economic impact on broadcasters, lower

courts are just plain wrong:

news monitoring services do

not diminish the incentive to produce news or other

programs. There is no countervailing benefit, economic or otherwise, from courts acting to suppress access to news.

This appellate decision and other regrettably

like-minded courts have defied congressional intent

regarding the proper application of the fair use doctrine.

At least two other courts around the country have adopted

both the factual and legal conclusions of this earlier

decision.

They have refused to follow Congress'

instructions

to apply the doctrine on a case-by-case

basis.

Courts have ignored, for example, that many owners

of copyrights in monitored programs

such as commercial

8.

Sony, 464 U.S. at 450-51.

71-249 O - 93 - 4

advertisements or video news releases

are not the

broadcasters, and that these copyright owners freely

consent to monitoring.

Yet, services monitoring even

these programs are threatened or subject to injunction.

The one judicial decision in favor of broadcast

news monitors, an Eleventh circuit decision that

recognized that news monitoring could constitute a fair use, was recently vacated by an en banc panel of the same

court.

In that case, Cable News Network, Inc. V. Video

Monitoring Services of America, Inc., 940 F.2d 1471 (11th

Cir. 1991), vacated and reh'g granted, 949 F.2d 378 (11th

Cir. 1991), the Eleventh circuit recognized the

extraordinary importance of news monitoring to the American public. It found that news monitoring services were an indispensable vehicle by which the public could

have access to information disseminated by the electronic

media.

The Eleventh Circuit panel concluded, therefore,

that the copyright law should be viewed through the prism

of the First Amendment.

As such, the panel concluded that

news monitoring services were entitled to the protection of the fair use doctrine. It was the first indication, it

had been hoped, of a reversal in the judicial trend toward

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what had been an overly restrictive misapplication of the copyright law to news monitoring services.

That decision, however, was vacated (on procedural, and not substantive) grounds. Cable News Network, Inc. V. Video Monitoring Services, Inc.,

959 F.2d 188 (11th cir. 1992). Consequently, it is clear to

broadcast news monitors and their clients that they cannot

count on the courts for protection.

By sharply restricting the proper scope of the

fair use doctrine, courts have curtailed the activities of

broadcast monitoring services.

The unfortunate result is

that the public's First Amendment right to access to news

programs is now being severely eroded.

IV.

CONGRESSIONAL ACTION IS REQUIRED TO PROTECT MONITORS
AND THE PUBLIC'S RIGHT OF ACCESS TO INFORMATION

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change in the first sentence of Section 107 of the

Copyright Act to clarify that the monitoring of news

programming is a purpose for which certain uses

such as

the services provided by commercial news monitors

are

fair.

s. 1805 would add the phrase "monitoring news

reporting programming" to the enumerated list of purposes for which a use is presumptively "fair". This list has always been regarded as illustrative, and never as exclusive. Already, a wide range of uses for such

purposes as criticism, comment, news reporting, teaching,

scholarship, and research are presumed to be fair uses and

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that news monitoring is entitled to the same protection as other purposes that further the public interest in

access to and the dissemination and use of information.

s. 1805 does not define "monitoring news

reporting programming" because "news reporting" is a term

that is well-understood and is already a purpose mentioned

expressly in the first sentence of Section 107.

"Monitoring," as noted above, is the tracking of programming, and its scope would be described more fully

in legislative history.

Accompanying legislative history can also be

used to describe and define the activities of monitoring

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