• by Wendy Davis  @wendyndavis, January 8, 2009

The startup, which had all of its clips taken down from YouTube after Fox complained about alleged copyright infringement, says its use of Fox video excerpts was lawful. "We are responsible YouTube users who utilize the site as a journalistic tool," Progress Illinois editor and publisher Josh Kalven wrote in a letter sent to Fox this week. "We are not teenagers attempting to pirate material unlawfully."

Kalven said in the letter that he would like to see the company's YouTube channel reinstated. He also told Online Media Daily the matter could land in court unless Fox retreats. "If they come back and say they're standing by their infringement claim, we are prepared to take legal action," he said.

The dispute dates to November, when Progress Illinois wrote a blog post about corruption in Cook County, Ill., in which it embedded a 30-second excerpt from a show by the local Fox affiliate, WFLD. The clip itself was hosted on YouTube, where Progress Illinois had its own channel. The post explicitly discussed Fox's exposé about the topic and linked back to the company's site.

Fox complained that the clip, and two subsequent ones posted by Progress Illinois, infringed on the TV affiliate's copyright. Those clips, like the first disputed one, were hosted by YouTube and embedded in an original ProgressIllinois.com story.

YouTube last month closed Progress Illinois's account, removing access to around 100 clips the site had uploaded, in response to Fox's repeated complaints. A Google spokesperson said the company's policy is to remove videos in response to copyright complaints. The company also sometimes terminates accounts of people who are repeatedly accused of infringement.

A Fox Chicago spokesperson said the media company issued the takedown notice because it believed the material violated its copyright.

But Kalven said that the brief clips constitute a fair use of Fox material. "These were not full segments from Fox broadcasts," he said. "They were clips and snippets from longer reports and they were generally accompanied by links to their Web sites. We tried to drive traffic their way."

Paul Alan Levy, a lawyer with consumer rights group Public Citizen, said the clips appeared to constitute fair use, based on the publicly available knowledge about them. Specifically, he said, the clips apparently consisted of relatively brief excerpts of longer broadcasts, and were non-commercial. "Under those circumstances, it seems like it would be pretty hard for Fox News to prevail," Levy said.

Progress Illinois, a three-person shop, launched last March and began offering video around two months later. Of the 100 clips Progress Illinois had posted to YouTube, around 25 consisted of original video footage.

The others contained snippets from local news stations, including the ABC, NBC and CBS affiliates.

Kalven said none of the other stations complained about the clips. Progress Illinois is now posting video clips to a channel on YouTube rival Blip.tv.

Progress Illinois is not the only news company to argue that the use of brief excerpts and snippets from other outlets constitutes fair use. The New York Times Co. is currently in court defending itself on copyright infringement allegations brought by Gatehouse Media. In that case, Gatehouse complained that Boston.com violated Gatehouse's copyright by posting headlines and first sentences of news stories.