The digital rights group Electronic Frontier Foundation and other advocates are asking a federal appellate court to reconsider its recent ruling that online video clipping service TVEyes isn't protected by "fair use" principles.
The ruling "undermined a central purpose of fair use," the groups say in a friend-of-the-court brief filed this week with the 2nd Circuit Court of Appeals.
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.
TVEyes countered that it was protected by fair use principles, arguing that its service is "transformative" -- offering users the ability to analyze companies' approach to the news.
The appeals panel sided with Fox, ruling that the broadcaster was entitled to an injunction prohibiting TVEyes from offering clients video clips from Fox's news programs. "At bottom, TVEyes is unlawfully profiting off the work of others by commercially re-distributing all of that work that a viewer wishes to use, without payment or license," the judges wrote last month.
The panel specifically found that TVEyes harmed Fox's ability to monetize its content. The judges wrote in the opinion that TVEyes' success demonstrates that the service "displaces potential Fox revenues."
TVEyes recently asked a larger panel of 2nd Circuit judges to reconsider that ruling.
The EFF and others, including the groups Fairness & Accuracy and Organization of Transformative Works, are back TVEyes' request. The groups argue that the panel didn't take into account that Fox News doesn't allow people who license clips to engage in criticism.
The appellate panel "ignored the undisputed fact that the licensing market it relied on is one that Fox is explicitly unwilling to serve: the market for critical uses of Fox’s content," the EFF and others write. "In so doing, the panel undermined a central purpose of fair use by foreclosing, rather than enabling, use for criticism and commentary."
The EFF and others add that the ruling was "simplistic and circular," arguing that the decision "conflates TVEyes’ commercial success with harm to Fox’s potential licensing market."
The high-profile battle between Fox News and TVEyes has drawn a great deal of outside interest from outside groups, including other groups representing broadcasters and journalists. Two years ago, the National Association of Broadcasters, CNN, Hearst American Society of Journalists and others urged the appellate court to rule in favor of Fox News.
CNN and others argued that TVEyes "unlawfully misappropriates" the market for short video clips, while ASJA said the company was a "low-level plagiarist" that "imposes a huge economic impact on those who investigate and report the news."