• by Wendy Davis  @wendyndavis, June 23, 2016

Television monitoring service TVEyes is a "low-level plagiarist" that "imposes a huge economic impact on those who investigate and report the news," the American Society of Journalists and Authors argues in new court papers.

The organization is urging the 2nd Circuit Court of Appeals to reverse a trial judge's decision that TVEyes' indexing and clipping service was “transformative,” and therefore a fair use, because it serves a different function from the original broadcasts.

The dispute dates to 2013, when Fox alleged that TVEyes infringed copyright with its $500-a-month online monitoring service, which enables subscribers to watch online video clips from shows like “On the Record with Greta Van Sustren” and “Special Report with Bret Baier.”

The service is used by journalists, the White House, politicians and the U.S. military, among others.

U.S. District Court Judge Alvin Hellerstein in Manhattan issued a mixed ruling in the case. In September of 2014, he said TVEyes makes fair use of Fox's material by indexing its news clips and providing snippets of them to subscribers.

“Without TVEyes, there is no other way to sift through more than 27,000 hours of programming broadcast on television daily, most of which is not available online or anywhere else, to track and discover information,” Hellerstein wrote of the service.

“The White House uses TVEyes to evaluate news stories and give feedback to the press corps,” Hellerstein added. “The United States Army uses TVEyes to track media coverage of military operations in remote locations, to ensure national security and the safety of American troops.”

The following year, Hellerstein ruled that other components of TVEyes' service -- including functions enabling subscribers to download clips for offline viewing, email clips to others, and to search programs by date and time -- are not protected by fair use.

TVEyes and Fox both appealed to the 2nd Circuit Court of Appeals in New York.

The American Society of Journalists and Authors is one of a broad array of outside organizations siding with Fox in the matter. Rival broadcasters, including CNN and Hearst, are backing Fox, as are organizations like the National Association of Broadcasters and National Cable & Telecommunications Association.

The ASJA argues in its friend-of-the-court brief that a decision in favor of TVEyes would harm the news industry.

"Without copyright protection, it becomes economically impossible for journalists and news organizations to earn a return on their creativity," the group writes. "TVEyes’ service undermines and conflicts with creating the very type of work that it copies and delivers to its commercial customers."

CNN, Hearst and other broadcasters add in separate papers that TVEyes "unlawfully misappropriates" the market for short video clips.

"It charges hefty subscription fees to its customers in exchange for distributing massive numbers of full clips of news stories it has neither created nor licensed," CNN and the others write.

"Clips shared via TVEyes do not direct users back to an original site, preventing the copyright owner from monetizing the content either through direct advertising, increased traffic metrics or licensing. Instead, TVEyes captures 100% of its high subscription revenues for itself."

TVEyes also has drawn support from outside groups, including the Electronic Frontier Foundation and the Internet Archive.