TVEyes: A Loss for Fair Use
In a relatively short, but significant opinion, the Southern District of New York recently handed down a ruling which has the capacity to both undermine the defense of fair use in a copyright infringement action and silence vigorous and effective media criticism. In Fox News Network, LLC v. TVEyes, Inc., the Honorable Alvin K. Hellerstein held that two fundamental features of TVEyes—a widely used media-monitoring service—were not entitled to the affirmative defense of fair use. In the suit, Fox sought an injunction and damages preventing TVEyes from any further copying, reproduction, or distribution of Fox News Network’s copyright-protected programming.
Copyright is a legal right, which protects original works of authorship fixed in a tangible medium of expression for a limited period of time. Among the six exclusive rights held by a copyright holder, the exclusive rights of reproduction and distribution were at the center of Fox’s copyright infringement claims.
TVEyes records media content from more than 2,000 different television and radio broadcasts and transforms this content into a searchable database, which in turn allows subscribers to search and track the usage of keywords or phrases of interest. While not available to the general public, TVEyes is utilized by a myriad of different entities, including the White House, other news organizations, members of Congress, and various non-profit organizations to monitor what the media reports in conjunction with how it’s being reported.
Late last year, Judge Hellerstein blocked most of Fox’s claims on fair use grounds, but reserved judgment and requested additional briefings along with a limited discovery with respect to four features of TVEyes’ service: archiving of videos; downloading of videos; sharing of videos by email; and finally the ability to search by date and time. In his most recent opinion, Judge Hellerstein held that the latter two functions were not essential to TVEyes’ transformative purpose of allowing users to search and monitor television news, and were thus not entitled to the fair use defense.
In the context of a copyright infringement suit, fair use is an affirmative defense, permitting the unlicensed use of copyright-protected material so long as the use falls into one or more specific categories including: commentary, criticism, news reporting, teaching, scholarship, and research.
In finding that TVEyes’ download functionality was not fair use, the court held that because availability to Internet access is so commonplace, there was essentially no need for the user to download the content. This reasoning is flawed however, as the archival functionality, which was held by the court to be a fair use, is not substantially different from the download functionality. Because TVEyes’ initial act of recording and storing Fox News’ content was found to be a fair use by the court, so long as the downloaded copy was used by TVEyes for the same purposes as the court previously held were fair—monitoring and reporting on the news—the fact that some users could misuse such content via the downloading functionality should not impact the validity of TVEyes’ fair use argument.
The court further held that the date-time search was not subject to the affirmative defense of fair use. Because a user utilizing such a feature would already need to know what he or she was looking for, the feature was defined not as a search tool, “but rather a content-delivery” tool. The feature was found to be non-transformative because users could in theory just license the clip from Fox News or its licensing agents. Reality, however, provides a far different answer. As a requirement of Fox News’ license (and for that matter, many other news organizations), prospective licensees of Fox content must agree not to cast Fox in a negative light. Such promises, while understandable, are not conducive to a robust and free commentary on the media and its news reporting practices. If organizations that monitor and provide commentary, not just on news but also on how the news is told, are stripped of this useful tool, free speech and the public generally, will suffer.