TVEyes Wants To Take Fox News Fight To Supreme Court

TVEyes aims to take a legal battle over its $500-a-month online monitoring service to the Supreme Court, the company says in new court papers.

"This case presents an exceptionally important question regarding the proper construction of the Copyright Act’s fair use defense," TVEyes writes in a motion filed with the Supreme Court on Wednesday.

The motion outlines the company's plans to ask the Supreme Court to reverse a decision issued earlier this year by the 2nd Circuit Court of Appeals, which ordered TVEyes to stop offering clients video clips from Fox News programs.

The legal battle dates to 2013, when Fox News alleged in a lawsuit that TVEyes infringed copyright with its video 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.



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 year, he ruled that other components of TVEyes' service infringed copyright.

Both companies then appealed to the 2nd Circuit. Fox News argued at a hearing last year that its ability to market its clips, or to create a market for clips in the future, was being thwarted by TVEyes.

TVEyes countered that its service was protected by fair use principles because it is "transformative" -- offering not simply access to news and entertainment but also the ability to analyze companies' approach to the news.

A three-judge appellate panel ruled against TVEyes earlier this year. Two of the judges said in a written opinion that they agreed with TVEyes that its service was transformative, but said the service wasn't protected by fair use principles because it harms Fox's ability to monetize its content. The judges specifically noted that TVEyes' success shows that the service "displaces potential Fox revenues."

TVEyes plans to argue that those judges' reasoning was circular, in that they presumed Fox was harmed based on TVEyes' popularity. "The decision below conflicts with prior decisions of this Court and other courts of appeals rejecting the position that ... market harm may be presumed from a copyright defendant’s commercial success," TVEyes writes in its papers, which preview the arguments it plans to make.

The company also will argue that the 2nd Circuit's ruling effectively allows Fox to stifle criticism of its programs by attaching restrictive conditions to licenses. TVEyes' attorney said at a hearing last March that Fox's licenses aren't suitable for people who want to criticize news programs, because the licenses contain a non-disparagement clause.

In its new papers, TVEyes asks the Supreme Court for additional time to officially petition for an appeal. The company is seeking an extension from August 13 to September 12.

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