• by Wendy Davis  @wendyndavis, October 26, 2018

The Supreme Court should leave in place a lower court's ruling that TVEyes infringes copyright with its paid video clipping service, Fox News argues in new court papers.

“The decision below faithfully and correctly applied this Court’s precedents to conclude that TVEyes’ service of delivering unlimited, unauthorized, unredacted, lengthy, seriatim high quality video clips to paying subscribers is anything but a fair use of Fox’s copyrighted content,” Fox writes in papers filed Wednesday.

The broadcaster's papers come in a legal fight dating to 2013, when Fox News alleged 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 federal 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. The following year, he ruled that otherTVEyes features infringed copyright.

Both companies then appealed to the 2nd Circuit in New York. Fox News argued at 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's "transformative," offering the ability to analyze companies' approach to the news.

A three-judge panel of the appellate court sided with Fox News. Those judges said 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 it wasn't necessary to decide whether TVEyes was transformative.)

TVEyes recently asked the Supreme Court to hear an appeal. The digital rights group Electronic Frontier Foundation, online library Internet Archive, and others are backing that request. They argue that TVEyes' comprehensive database serves a vital function by enabling media criticism.

Fox counters in its new court papers that enabling criticism isn't a defense to copyright infringement.

“What TVEyes actually seeks to do is rely on the criticism that it asserts its subscribers make,” Fox argues. “Yet, the circuits uniformly hold that a defendant must defend its own copying, and cannot rely on uses made by its subscribers.”

Fox also contends that TVEyes' service isn't necessary for media criticism. “As the Second Circuit recognized, criticism of the media is alive and well, and is in no way dependent on TVEyes’ efforts to profit from copying and distributing the media’s copyrighted content,” Fox writes. “Indeed, it is TVEyes that poses the real threat to First Amendment values, as depriving the media of its entitled copyright protection will serve to dampen public discourse by hindering the viability of media services that depend on receiving fees for their content.”