• by Wendy Davis  @wendyndavis, November 7, 2018

A lower court's ruling that TVEyes's video clipping service infringes Fox News' copyright carries “severe practical consequences” for free speech, TVEyes argues in new court papers.

“Fox has an outsized role in the political life of the United States, as Fox host Sean Hannity’s recent appearance with President Trump on the campaign trail reinforces,” TVEyes argues, referring to Hannity's controversial presence onstage this week at Trump's rally in Cape Girardeau, Missouri.

“The decision below casts a chill over both the nation’s political discourse and a host of other transformative uses, especially for new technologies,” TVEyes adds in papers submitted Wednesday to the Supreme Court.

TVEyes makes the argument as part of its effort to convince the Supreme Court to hear an appeal of a ruling that the online clipping service infringes Fox News' copyright.

The fight dates 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 district court judge in Manhattan issued a mixed ruling in the case. He ruled that TVEyes makes fair use of Fox's material by indexing its news clips and providing snippets of them to subscribers, but also ruled that other TVEyes features infringed copyright.

Both companies then appealed to the 2nd Circuit Court of Appeals in New York. Fox News argued 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 and its supporters -- including digital rights groups and media critics -- recently asked the Supreme Court to hear an appeal. Among other arguments, they say TVEyes' database of video clips enables observers to analyze and critique televised news programs.

Fox News urged the Supreme Court to leave the decision in place. Among other arguments, Fox says that enabling researchers to analyze programs isn't in itself a fair use, and that TVEyes' business model threatens companies like Fox that “depend on receiving fees for their content.”

TVEyes counters in its newest court papers that Fox doesn't attempt to monetize its news programs by offering comprehensive clips to critics or researchers.

“Fox makes just 16% of broadcast content available online as clips on its website or through syndicated partners,” TVEyes writes. “These clips are all hand-selected by Fox to reflect its editorial preferences, not to enable objective research.”

“Not only do the clips differ from what was broadcast, but Fox restricts the use of its website to 'personal use only' and it 'may not be used for commercial purposes.'”

The Supreme Court is expected to consider the matter later this month.