• by Wendy Davis , Staff Writer @wendyndavis, June 8, 2015

Television monitoring company TVEyes could face the same fate as the doomed Aereo, if the broadcast news networks get their way.

TVEyes enables the subscribers to its $500-a-month service to search for television programs by keywords, view snippets and download and share clips. To accomplish this, TVEyes records every program broadcast on more than 1,400 TV and radio stations.

The company says its entitled to do so, thanks to fair use principles.

But the major news networks see things differently.

Fox News, which sued TVEyes in 2013, says the monitoring service infringes copyright by digitizing news programs and allowing people to view and download clips of them. Fox is seeking monetary damages and an order prohibiting TVEyes from continuing to copy and display programs like "The O'Reilly Factor" and "Hannity."

Last September, Fox News lost a preliminary battle in the case, when U.S. District Court Judge Alvin Hellerstein in Manhattan ruled that TVEyes makes fair use of Fox News Network's material by indexing news clips and providing snippets of them to subscribers. Hellerstein said that the indexing and clipping service was “transformative,” and therefore a fair use, because it serves a different function from the original broadcasts.

“The White House uses TVEyes to evaluate news stories and give feedback to the press corps,” Hellerstein wrote at the time. “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.”

But that ruling left open a key question -- whether TVEyes can let users download and share clips.

TVEyes and Fox recently submitted their arguments to Hellerstein on that point. Those papers were filed under seal, and aren't currently available.

But last week, a host of outside companies filed publicly available friend-of-the-court briefs that outline some of the major arguments.

Other TV news broadcasters, including CNN, CBS and NBCUniversal are backing Fox in the battle. “This case is not just about Fox News,” the TV news networks say. “It affects all creators and publishers of broadcast and digital content ... who depend on licensing deals and advertising sales to support their continuing ability to provide high-quality news and entertainment content.”

The news organizations contend that Hellerstein's earlier pro-TVEyes decision was wrong, arguing that “the copying and storage of the entirety of a network’s copyrighted news broadcast content in order to provide a commercial, subscription-based monitoring business simply does not constitute a fair use.”

CNN and the others also point out that TVEyes doesn't direct users back to the original source, but hosts content on its own services and allows users to download, share and post the clips -- depriving the networks of data about the viewers and potential ad revenue.

“Segments downloaded from TVEyes do not provide analytics to the content owner about the number of views or shares -- vital currency for digital publishers who carefully track uptake of content in order to set advertising rates,” they argue. “Nor can the content owner display advertising or otherwise receive revenue from the public display of its copyrighted content when downloaded through TVEyes.”

On the other side of the issue is a coalition including The Nation's former editor and publisher Victor Navasky, The Nation columnist Eric Alterman, media company Brave New Films and media-watch group Fairness and Accuracy in Reporting.

They say that in the past, when there were just three daily national news shows, it was “feasible -- though extraordinarily time-consuming and resource-intensive” for groups like FAIR to physically record and watch the programs in order to analyze coverage.

“Today, it is not just inconvenient, but impossible, for such organizations to monitor the news media in the same way,” they argue. “As the universe of content has expanded, so must the ability of watchdogs to track what is being said, in what ways, how often, and by whom. Today, absent the mass digitization of television content, there is no feasible way for media critics to capture and present a comprehensive view of all of the content being broadcast to the news-consuming public.”

They add that the ability to download and share clips are essential to media criticism.

“If ... Eric Alterman wants to review ten hours of Fox News footage for a presentation at a media conference while on a flight from New York to Tokyo, he would need to download clips in order to study them during the flight to further the transformative purpose of developing and presenting media criticism,” the groups argue.

They add that if staff at Brave New Films wants to collaborate to analyze TV news programs “they would need to email clips back and forth.”

Hellerstein will hold a hearing in the case next month.