• by Wendy Davis  @wendyndavis, October 15, 2018

Online video clipping service TVEyes is drawing support from a host of outside groups -- including online library Internet Archive, Wikimedia Foundation and digital rights organization Electronic Frontier Foundation -- in a high-profile copyright battle with Fox News.

“Researchers need services like TVEyes,” the groups write in papers filed Friday with the Supreme Court. “Media critics cannot properly analyze television programming without the ability to locate, review and compare broadcasts from thousands of programs aired on hundreds of stations twenty-four hours per day, seven days per week.”

The organizations are asking the Supreme Court to hear TVEyes' appeal of a recent ruling by the 2nd Circuit Court of Appeals. That court, located in New York, ruled earlier this year that TVEyes' video clipping service is not protected by “fair use” principles. 

The ruling came in a battle dating to 2013, when Fox News alleged in a lawsuit that TVEyes infringed copyright with its $500-a-month online monitoring service -- 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.

A trial judge 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 panel of the appellate court sided with Fox News, ruling that TVEyes' service was transformative, but nonetheless not protected by fair use because it harms Fox's ability to monetize its content. (A third judge said in a separate opinion that he didn't think it was necessary to decide whether TVEyes was transformative.)

TVEyes recently asked the Supreme Court to hear an appeal. The EFF, Internet Archive and others are backing that request. Among other arguments, the groups say that TVEyes' comprehensive database serves a vital function.

“Absent the mass digitization facilitated by TVEyes’ technology, media critics could not capture and study the thousands of hours of content broadcast to the public each day,” the groups write.

They add that libraries and other nonprofits lack the resources to create the kind of database as TVEyes. “Through services like TVEyes, however, nonprofits and researchers who wish to search, watch, analyze, and comment on broadcast television after it airs can effectively do so,” the groups write. “They can locate far-flung clips and compare coverage across sources or time.”

Fox News is expected to respond file papers with the Supreme Court by November 13.