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 market for the broadcast monitoring 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 1. 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' decision. instructions basis. 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 8. Sony, 464 U.S. at 450-51. 71-249 0 - 93 - 4 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 rehʼg 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 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 Congress should act to restore the constitutional balance of rights between the American public and broadcasters of news programs. S. 1805 is simple and straight-forward: it makes only a minimal 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 fair. such as -- are 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 not infringements of copyright. As discussed above, monitoring itself and, therefore, monitoring services make news programs available for exactly these purposes. Nevertheless, the amendment is required to clarify Congress' intention 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 |