In March of this year, the Second Circuit reversed a decision by the District Court and held that the video clipping service operated by TVEyes infringed Fox News’ copyrights. We covered this decision in a previous blog. TVEyes is now attempting to bring the matter to the Supreme Court in what could be a landmark case regarding fair use of newsworthy content.
TVEyes is a subscription service that records essentially all television broadcasts on 1,400 channels on a 24/7 basis. By using the closed-captioned content that accompanies the recorded broadcasts, it is able to create a text-searchable database of the contents of each clip. TVEyes subscribers can run searches that return a list of video clips containing the searched terms. Each clip runs for 10 minutes and begins shortly before the search term appears in the clip. In addition to news organizations such as the New York Times, its subscribers include the U.S. Department of Defense, the United Nations, professional sports leagues and even the White House.
Five years ago, Fox News brought suit against TVEyes for copyright infringement based on its “verbatim reproduction” of Fox’s broadcasts. TVEyes countered by asserting a fair use defense. The District Court agreed and dismissed Fox’s claims, but the Second Circuit reversed and remanded the case with instructions to enjoin TVEyes from making available to clients the ability to watch the 10-minute clips retrieved from TVEyes’ client search requests. (Fox did not object to TVEyes’ creation of a text-searchable database, only to its delivery of clips.) The court held that two elements of TVEyes’ use favored Fox. First, by making 10 minutes of content available, TVEyes delivered “virtually the entirety of the Fox programming that TVEyes viewers want to see and hear.” Second, and most important, TVEyes’ service was sufficiently competitive to potentially deprive Fox of revenues that it could have been receiving from its own program of searchable access to its broadcasts. The very success of TVEyes’ service was strong evidence of the existence of a market for searchable clips.
The Second Circuit contrasted this to Google’s actions – which were found to constitute fair use – in Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015) (“Google Books”). In that case, Google made unlicensed text-searchable copies of millions of books for which searches retrieved “snippets” of the books containing the search terms. Unlike TVEyes’ 10-minute video clips, these “snippets,” according to the Second Circuit, “abbreviated to ensure that it would be nearly impossible for a user to see a meaningful exposition of what the author originally intended to convey to readers.”
TVEyes is now seeking to argue its case to the Supreme Court. It argues that its case presents an opportunity to resolve a split between circuits over “a question of exceptional importance, including the proper balance under copyright law between the interests of a copyright holder and the First Amendment right to criticize and comment upon the copyright holder.” TVEyes also notes that the Court has not addressed fair use for over 20 years, since it articulated the doctrine of transformative use in the case of Campbell v. Acuff-Rose Music.