Fox News: TVEyes Infringes Copyright, Undercuts Licensing Market

Television monitoring service TVEyes, which indexes news clips and provides excerpts to subscribers, is not protected by fair use principles, Fox News argues in new court papers.

Fox News makes the argument as part of its bid to reverse a trial judge's determination that TVEyes' indexing and clipping service was “transformative,” and therefore a fair use, because it serves a different function from the original broadcasts.

The battle between Fox and TVEyes dates to 2013, when Fox alleged in a lawsuit that TVEyes infringed copyright with its $500-a-month online monitoring service -- which 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. But the following August, he 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 the rulings to the 2nd Circuit Court of Appeals in New York.

While the matter was pending, the 2nd Circuit decided that Google's book-scanning project -- which involves digitizing books and displaying snippets in the search results -- is protected by fair use principles.

TVEyes referenced that decision in its appeal, asserting that the ruling boosts the company's fair use argument. "Google’s verbatim copying of millions of copyrighted books without alteration for the purpose of creating a text-searchable database, and displaying snippets of text in response to user queries, was 'highly transformative,' even though Google did not modify the text," TVEyes wrote in its appeal, filed with the court in March.

But Fox News says Google's book project differs significantly from TVEyes' paid subscription service.

"TVEyes’ service is nothing like Google Books. It goes beyond finding authorized copies of television content, and instead delivers unlimited, unauthorized, lengthy, seriatim, high-definition video clips to its paying subscribers," Fox argues in papers filed on Thursday. "Far from mirroring Google, these clips are a transparent, effective market substitute, making television programs available online both in real-time and on a delay without requiring cable subscriptions or remunerating television networks."

Fox also argues that TVEyes doesn't make fair use of the clips because it undercuts Fox's monetization efforts. Courts say that one factor to be considered in deciding "fair use" questions is whether copying all or part of a work affects the market for it.

Fox argues that public relations professionals use TVEyes' service "as a source of unlimited, high-definition video clips, which they distribute and post to social media to promote their clients’ appearances and mentions of their products on television."

"As a result, TVEyes undercuts Fox’s well-developed clip licensing market by offering the same clips for less than 'traditional clipping services,'" Fox News says in its appellate papers.

The high-profile fight as drawn much outside interest. Groups like the Electronic Frontier Foundation and the Internet Archive sided with TVEyes in friend-of-the-court briefs, while other broadcasters including CNN, CBS and NBCUniversal have sided with Fox.

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