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. MP3.com, Inc., 92 F. Supp. 349 (S.D.N.Y. (2000), in which the court ruled that MP3.com 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 My.MP3.com 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 MP3.com, however, were not entirely analogous to those provided by Redlasso. MP3.com'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 MP3.com:
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 MP3.com 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.