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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
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
Pacific & Southern Co. v. Duncan, 572 F. Supp. 1186
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
They have refused to follow Congress'
to apply the doctrine on a case-by-case
Courts have ignored, for example, that many owners
of copyrights in monitored programs
such as commercial
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
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
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
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.
CONGRESSIONAL ACTION IS REQUIRED TO PROTECT MONITORS
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
the services provided by commercial news monitors
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
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