• by Wendy Davis  @wendyndavis, August 5, 2015

Television monitoring service TVEyes is asking a judge to dismiss a lawsuit alleging that it violates federal law by transmitting news clips without the authorization of satellite provider DirecTV.

"TVEyes is a valuable and entirely legal monitoring service -- the broadcast media analogue to a search engine or book index a la Google Books -- protected as fair use under the Copyright Act," the company argues in papers filed this week with U.S. District Court Judge Fernando Olguin in the Central District of California.

The company is responding to a lawsuit filed in June by DirecTV, which alleges that TVEyes' service violates the federal Communications Act.

Specifically, DirecTV accuses TVEyes of violating Section 605 of that law by obtaining satellite programming under "false pretenses." DirecTV also argues that TVEyes lacks authorization to retransmit and distribute clips of news shows to its customers.

TVEyes counters in its new court papers that Section 605 of the Communications Act is aimed at prohibiting people from capturing satellite signals without paying for them, but doesn't affect its $500-a-month clipping service.

TVEyes enables subscribers to search for programs by keywords, view snippets and download and share clips. To accomplish this, TV Eyes records every program broadcast on more than 1,400 TV and radio stations.

"Section 605 is an anti-piracy statute," TVEyes argues. "It prohibits the unlicensed interception of a satellite (or 'radio') signal in transit... What it does not reach is the type of conduct alleged here: the selective subsequent copying and display via the internet of segments of programs initially received by satellite."

DirecTV, now owned by AT&T, sued TVEyes several months after the Web-based clipping service won a significant victory in federal court in New York, where Fox News Network alleged that TVEyes infringed copyright by digitizing news programs.

U.S. District Court Judge Alvin Hellerstein in Manhattan ruled in September that TVEyes' indexing and clipping service was “transformative,” and therefore a fair use, because it serves a different function from the original broadcasts.

“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 wrote. “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,” he added.

Hellerstein has not yet ruled on whether TVEyes also can let users download and share clips.

CNN, CBS, NBCUniversal and others are joining Fox in urging Hellerstein to rule against TVEyes on that point. They argue that the outcome of the lawsuit could affect all media companies that rely on licensing deals and ad sales to support their news operations.

But 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 are siding with TVEyes.

They say that it's no longer possible for media watchdogs to monitor the news without a service like TVEyes.