• by Wendy Davis , Staff Writer @wendyndavis, March 7, 2017

The fight between Web service TVEyes and Fox News marks a "a crucial case to the future of television journalism." That's according to Dale Cendali, the attorney representing Fox in its attempt to put TVEyes out of business.

Cendali today asked the 2nd Circuit Court of Appeals to enjoin TVEyes from continuing to provide news clips to subscribers of its $500-a-month service.

"Our business is marketing content," she told the judges this morning at a hearing in New York that lasted over an hour. Cendali added that TVEyes' service could interfere with Fox's attempts to profit from its news programs.

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. TVEyes records and indexes news programs from 1,400 stations, and allows subscribers to search for news clips by keywords and access portions of the shows. 

Hellerstein issued a mixed decision in the case. In September of 2014, he ruled that TVEyes makes fair use of Fox's material by indexing its news clips and providing portions of the programs 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 -- aren't protected by fair use.

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

Among other arguments, Fox says that TVEyes may be thwarting Fox's ability to market its clips, or to create a market for clips in the future. Cendali noted this morning that Fox currently makes some programs available online, and also licenses videos from its news shows.

But TVEyes' lawyer, Kathleen Sullivan, told the appellate judges that Fox's licenses aren't suitable for people who want to criticize news programs, because those licenses contain a non-disparagement clause.

Sullivan also argued that TVEyes' entire service is protected by fair use principles because it's transformative. The company's subscribers, she said, don't sign up for the service simply to access news and entertainment. Instead, many subscribe in order to analyze various companies' approach to the news. For instance, she said, it could be important for a subscriber to know that one station devoted the first seven minutes of a broadcast to a story, while a competing station only spent half a minute on the same news.

She also compared the service to Google Books, which defeated a copyright infringement lawsuit by the Authors Guild. Google digitizes books in order to make them searchable, and displays snippets in response to keyword searches.

But the judges sharply questioned Sullivan on that point, repeatedly pointing out that Google only displays snippets -- and not entire books -- in response to search requests. By contrast, TVEyes allows people to view up to 10 minutes of a clip at once -- long enough for subscribers to view the bulk of some news stories.

She countered that it was "not remotely plausible" that TVEyes' subscribers paid $500 a month to use the service as a substitute for a TiVO. Sullivan added that few subscribers even watch all 10 minutes of a clip; many, she said, watch for under one minute.

The fight between TVEyes and Fox has attracted outside interest from a variety of organizations. 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.