The battle of the briefs continued as Fox News urged the Supreme Court to take a pass on a petition for certiorari from TVEyes in a copyright case that has drawn considerable attention. As regular readers will recall, TVEyes records virtually everything on TV into a fully searchable database that it sells to subscribers. Fox News sued for copyright infringement; TVEyes asserted a fair use defense, which was rejected by the Second Circuit. TVEyes is asking the Supreme Court to overturn that decision.

TVEyes based its defense on the contributions its service makes to free speech and media criticism. Easy access to broadcast content, it argued, is essential for critics, commentators and researchers to keep pace in a chaotic and polarized media environment. TVEyes also asserted that the Circuit Court gave too much weight to the alleged economic harm to Fox when it applied the notoriously slippery four-factor fair use test.

Fox challenged the basic premise of TVEyes’ argument. “The Second Circuit’s holding does not concern political dialogue, commentary, criticism, or the First Amendment,” it wrote. “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.” According to Fox, the supposed social value of TVEyes’ service is no more than a smokescreen to persuade the Court to overturn a ruling that “does not implicate a split in the circuits, involve an important unsettled question of federal law, or otherwise raise a cert-worthy issue.”

The network also argued that the Second Circuit’s application of the fair use factors does not deserve review. That court’s “careful balancing of the four-factor fair use test was an inherently fact-bound exercise, and TVEyes’ narrow disagreement with the court’s finding as to one of those four factors does not begin to warrant this Court’s attention.”

The parties’ differences could not be more stark. Will the Supreme Court let the Second Circuit decision stand, or hear the case and create a fair use precedent the could be of great importance?

We report, you decide.

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