www.YouSue.com: WHAS-TV goes after Louisville bloggers for posting its video. How far will the station go?

Nov 6, 2007 at 8:27 pm

Right now on YouTube, you can find clips of WHAS-TV newscasts, everything from a story about a boy who died from electrocution by a garage door to an interview with the grown-up members of Hanson or footage of a cute but nervous puppy hurling on the anchor’s desk. Keying “WHAS11 video” into Google brings up hundreds more hits.

But there are 10 clips you won’t see, those posted by Louisville blogs The Ville Voice and Page One Kentucky, both published by Full Signal Media. The clips were used in commentaries about news coverage and other issues at WHAS. Page One co-owner Jacob Payne said he believes that’s made them a target: Two weeks ago, the station filed a copyright infringement claim with YouTube against Page One and Ville Voice for using those clips.

“Over the past several months, Rick (Redding) at Ville Voice has been able to write several stories about the tricky, unfortunate situations in WHAS management,” Payne said. “I feel it’s a huge disservice to our community when a huge TV station stifles criticism. We have to have the videos in order for our criticism to make sense.” Redding writes for LEO as a freelancer and is the newspaper’s regular media critic.

Payne said the two bloggers have an overwhelmingly positive relationship with most WHAS staff, and that statistics show many people at the station regularly read the blogs. He has said, and posted on his blog, that they suspect the move was the work of a single employee in the TV station’s Web staff who has a bone to pick.
A YouTube spokesperson was short on specifics regarding how such cases are handled or how often they arise.

“As a policy, we do not release this number,” the spokesperson said via e-mail. Nor would the company comment on how it vets the authority of people who file copyright infringement complaints. But David Ardia, director of the Citizen Media Law Project at Harvard Law School, said the complaint includes a signed statement that the filer is, in fact, who he or she claims to be. It’s unlikely that a lone employee would initiate legal action without the knowledge of superiors, but WHAS management declined LEO’s request for an interview that might clarify the issue.

YouTube sits in a pretty comfortable spot, buffered by the law from either side of such arguments. It has no legal obligation to protect free speech or monitor content, and the Digital Millennium Copyright Act protects it from liability for illegal content its members might upload, as long as there is a system in place for dealing with complaints. And there is: Yank first, ask questions later.

Page One and Ville Voice filed a counter-claim, and Ardia said the blogs do have strong legal grounding.
“If they’ve copied it, that is infringement. Then the question comes up, ‘Is it Fair Use?,’ and that’s a much more subtle and oftentimes difficult question to answer,” Ardia said. “But I will say that the law weighs heavily in favor of users in cases of media criticism.”

Fair Use law protects all sorts of people from lawsuits, including teachers who copy magazine articles or parts of books for use in classrooms. The main concerns include how much of the material is used, what type of material it is (creative works or news, for example) and how the use of the material affects the creator’s ability to compete in the market. That last bit about the market (read: cha-ching!) quite possibly has something to do with the move to have material taken down from YouTube.

“Even in our description of the videos we link back to our Web site and give a description of what’s going on, so nobody could think we’re using their material for commercial profit or something like that,” said Payne.
That’s true, but linking back to their own site, rather than the WHAS site, means users, in theory, have no extra motivation to check out WHAS11.com, where advertising dollars are earned in proportion to site traffic. News organizations all over the country are intensifying efforts to drive people to the Web, where an increasing percentage of ad dollars flow. In that sense, it’s all about the clicks.

Although the market impact might be negligible, it seems the bloggers, in their quest to provide a public service, forgot about good old-fashioned manners. Or rather, new-fashioned manners, unwritten rules of techie propriety that say linking back to the original content provider’s Web site, in this case WHAS, is just the right thing to do.

“Although (linking) doesn’t come into play in the Fair Use analysis, it certainly comes into play in the emotions when a party decides whether or not they will sue,” Ardia said.
Payne said the clunky WHAS site, which requires registration and doesn’t always have video available, discourages linking to it.

People familiar with similar cases say this particular flap will probably result in the content simply being reinstated. Page One filed a counter-claim, and WHAS has 14 days from that point to decide whether to sue the bloggers. Their decision will certainly carry implications about free speech for media critics — and possibly a lesson about how right your mom was when she told you to always share.

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