Here's a follow up to our story last Friday about Progress Illinois having its YouTube account restored
. The YouTube account had been taken down following multiple DMCA takedown notices from Fox, leading YouTube to institute its usual policy of shutting such accounts down. Progress Illinois sent a counternotice, and after Fox failed to sue the activist group, the account was turned back on. Paul Alan Levy
points us to some more troubling details about the discussions between Progress Illinois and Fox. Apparently, Fox sought to have Progress Illinois waive its fair use rights on all future Fox material and
demanded that it be allowed to run ads on the Progress Illinois site in exchange for allowing the content to be placed on YouTube. On top of this, Levy notes that Fox is apparently preparing a deal with another video site (that will include its desired ads), which Fox will apparently demand sites use in reporting on Fox News reports. As Levy suggests, Fox may then use this to suggest that any "unauthorized" clip of a Fox broadcast fails the "impact on the market" prong of the fair use test. If true, that could create quite
an interesting test case the first time Fox employs that argument on a site doing commentary. Its lawyers do know that failing one prong of the test doesn't automatically disqualify a fair use defense, right?