Friday, July 25, 2008

Redlasso's clipping service is shut down

Hulu partners NBC and Fox have sued Redlasso, alleging that Redlasso's service that provided clips of copyrighted network programs to blogs violates the plaintiffs' copyrights in those programs. As a result, Redlasso "announced today that it has no alternative but to suspend blogger access to its video search and clipping Beta site for the immediate future." Redlasso argues that its search and clipping service is not infringing because it makes possible commenting and criticism by bloggers, uses that are fair uses. As Redlasso's press release puts it (pdf):, "The now-suspended Beta site provides bloggers with online broadcast content tools that enables them to exercise their first amendment rights to comment on newsworthy events, by searching blogger-selected TV and radio segments and creating limited duration clips for usage in blog posts."

Eric Goldman, director of the High Tech Law Institute at Santa Clara University, argues that Redlasso's position that "it's enabling third-party users to engage in fair use" is not likely to prevail because "[f]air use doesn't provide coverage for the intermediary." Goldman bases his reasoning on UMG Recordings, Inc. v., Inc., 92 F. Supp. 349 (S.D.N.Y. (2000), in which the court ruled that was not engaged in fair use in providing online access to recordings its users already owned CDs of. The court reasoned that "although defendant recites that provides a transformative 'space shift' by which subscribers can enjoy the sound recordings contained on their CDs without lugging around the physical discs themselves, this is simply another way of saying that the unauthorized copies are being retransmitted in another medium -- an insufficient basis for any legitimate claim of transformation."

The services provided by, however, were not entirely analogous to those provided by Redlasso.'s users were merely using the online recordings for precisely the same purpose as the CDs they already owned: entertainment. Redlasso, on the other hand, provides clips of copyrighted shows for bloggers who, as mentioned above, comment on and criticize those clips. As an intermediary for these legitimate, non-infringing uses, Redlasso may be more like the defendant, an internet search engine, in Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2001). Arriba, the defendant, provided online thumbnails of the plaintiff's photographs that were linked to web pages containing those images (much like Google's image search does). The court held that Arriba's use was non-infringing and distinguished

Although Arriba made exact replications of Kelly's images, the thumbnails were much smaller, lower-resolution images that served an entirely different function than Kelly's original images. Kelly's images are artistic works intended to inform and to engage the viewer in an aesthetic experience. His images are used to portray scenes from the American West in an aesthetic manner. Arriba's use of Kelly's images in the thumbnails is unrelated to any aesthetic purpose. Arriba's search engine functions as a tool to help index and improve access to images on the internet and their related web sites. . . .

Kelly [the plaintiff-photographer] asserts that because Arriba reproduced his exact images and added nothing to them, Arriba's use cannot be transformative. Courts have been reluctant to find fair use when an original work is merely retransmitted in a different medium. [citing and Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104, 108 (2d Cir. 1998)]. Those cases are inapposite, however, because the resulting use of the copyrighted work in those cases was the same as the original use. For instance, reproducing music CDs in computer MP3 format does not change the fact that both formats are used for entertainment purposes. Likewise, reproducing news footage into a different format does not change the ultimate purpose of informing the public about current affairs.

Arriba Soft, 336 F.3d at 819-820. As with Arriba, Redlasso's clips of network broadcasts are intended for a different purpose than the original broadcast. The blogs that use the clips are not doing so merely to re-broadcast the clips but, rather, to comment on them, a use that is at the core of fair use. Redlasso too is not clipping the entirety of the original programs but, instead, selected segments of them.

Then again, these segments can be used illegitimately for the same purpose as the original clips; without comment or criticism, mere posting of the clips would serve the same purpose to a viewer as wouldt viewing that segment on TV. In that sense, Redlasso is not like Arriba or Google Image Search, which only reproduce low-resolution thumbnails of copyrighted images.

All that is certain to me is that the matter is not as clear as indicated by the quotes from Professor Goldman.


Anonymous said...

this sounds analogous to what google books is doing -- except perhaps without the 'entire library' component. is the entertainment industry just not used to the idea of 'fair use' because video itself is new enough that *nothing* is in the public domain, and the technology necessary for the average joe to quote the work via videoclipping (as opposed to transcripting) has only existed for, like, four minutes (in copyright time)? does redlasso actually hold the content, or do they just provide sets of tools? if the latter, shall we lock up word processors, too, then?

this is, well, baffling. do the producers of the work *seriously* believe they are losing money? do they really believe that 'we' will *pay* for this stuff? my guess is that they might make like $40 off of someone desperate to make a particular point, but other than that, they'll kill the work. it won't be seen. it will be forgotten. whatever happened to "fame. i'm gonna live forever?" these people obviously have no idea how 'word-of-mouth' works.


respectfully submitted,

Peter Friedman said...


While you might not be a lawyer, you cut straight to the point I think is most important -- without allowing the material to be used in this way, the producers are killing it. As you say, "It won't be seen. It will be forgotten."

It's not a question of law. It's a question of business. Who's going to pay for replays of Greta van Susteren?

And it's no small thing that you can see this. I remember in about 2001 when the Napster lawsuit was still being litigated. I suggested to my students that if the record companies had any sense they'd make their stuff all available in streaming audio online for free with a button next to the player that would allow purchase by download. The students told me I was an idiot, that if there was any sense to my suggestion the record companies obviously would have done it already.

At bottom, if law doesn't make sense, it's not justice, and if it's not justice, it's not good law. So keep up your non-lawyer insights. They can only help lawyers.


Kit Quiton said...

It's just that people don't know already what is the difference between appropriation and theft. When do we draw the line on this?