Fox News Network, LLC v. TVEyes, Inc., 2014 WL 4444043 (S.D.N.Y. Sept. 9, 2014)

TVEyes is a media-monitoring subscription service that “records the entire content of television and radio broadcasts and creates a searchable database of that content.” This service allows subscribers to search keywords or phrases to determine and review an aggregation of instances of the search term appearing in the media. Subscribers include businesses and governmental agencies such as the White House, United States Army, and local and state police departments; the service is not available to members of the general public. Clips are limited to ten minutes in length, and a majority of the clips are two minutes or less; users are required to agree to use the clips for internal purposes only.

Fox News took issue with TVEyes’ commercialization of its copyrighted broadcasts, and sued for infringement. It contended that TVEyes’ service would have a detrimental effect on the existing market for rebroadcasts of its copyrighted content, which Fox News made available online and also licensed to third parties.

TVEyes raised a fair use defense, and both sides moved for summary judgment. The court began with the proposition that “[t]ransformation almost always occurs when the new work ‘does something more than repackage or republish the original copyrighted work.’” (Slip op. at 13, citing Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014).)

The court noted that “there is a strong presumption in favor of fair use for the defendant” when the copied work is being used for one of the purposes listed in § 107, such as criticism, comment, news reporting, teaching, scholarship, or research. It also observed that TVEyes’s service, by providing “the actual images and sounds depicted on television” as well as “the news information itself,” offered a “transformative” service “that no other content provider provides.” The court found the TVEyes service analogously “transformative” to the searchable database of scanned books at issue inAuthors Guild v. HathiTrust and thumbnail images shown in search engine results as in Perfect 10 v. Amazon.com, but distinguished a rare recent case in which a court had found that the defendant, a news monitoring service for print news that aggregated content for subscribers based on keywords, had failed to prove its fair use defense. Associated Press v. Meltwater U.S. Holdings, 931 F. Supp. 2d 537 (S.D.N.Y. 2013).

Thus, the court decreed TVEyes’ use of Fox News broadcast content “transformative” in its discussion of the first fair use factor. It did then proceed to consider the other three factors, but it was clear that the transformativeness finding overshadowed the remaining factors. The second and third factors were found to be neutral, and summarily disposed of. The fourth factor, the effect of the copied work on the market for the original, received closer inspection, but was resolved in favor of TVEyes insofar as it: (1) deleted all of the copied content every 32 days; (2) experienced few instances of sequential playback by subscribers of Fox News content, such that “no reasonable juror could find that people are using TVEyes as a substitute for watching Fox News broadcasts on television”; and (3) benefitted the public by allowing subscribing entities to use the service for correction of misinformation, regulatory compliance, reporting on and criticizing news broadcasts, and ensuring national security, among other uses. The court had already rejected the notion that commerciality of the allegedly infringing work could carry “presumptive force against a finding of fairness” in its discussion of the first factor.

As others have noted, including Judge Easterbrook in the Seventh Circuit’s recent decision in Kienitz v. Sconnie Nation, it is difficult to reconcile the broad view of transformativeness exemplified in cases like TVEyesAuthors Guild v. Hathi Trust, and Cariou v. Prince with the text of Section 106 of the Copyright Act, which grants the copyright holder the “exclusive right” to “prepare derivative works,” and Section 101, which defines “derivative work” as any “form in which a [preexisting] work may be recast, transformed, or adapted.” More broadly, decisions like TVEyes suggest that courts are moving away from viewing fair use as a narrowly-drawn exception to copyright holders’ exclusive rights in their works, to the view that fair use promotes the creation of transformative works and thus serves one of the goals of copyright law itself. The TVEyes opinion, which essentially presumed transformativeness of the work at the outset of the fair use analysis, suggests that the trend toward this broader view of the role of fair use continues to gain traction in the federal courts.