In a closely watched copyright lawsuit, the Second Circuit reversed the District Court’s finding of “fair use” and upheld Fox News’ claim that the TVEyes service infringed its copyrights. This decision has broad implications for the manner in which video clips and text summaries are used in today’s fast-paced and interconnected digital media.
In brief, TVEyes operates a comprehensive subscription-based media-monitoring service that (i) records essentially all television broadcasts on 1,400 channels on a 24/7 basis, (ii) copies the closed-captioned content that accompanies the recorded broadcasts, and (iii) uses that content to make a text-searchable database. 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. Thus, a TVEyes’ subscriber can search for a particular product, political candidate, hot-button issue (e.g., the NRA), etc. and retrieve all clips that mention the product, individual or issue that is the subject of the search.
Fox News sued TVEyes for direct copyright infringement based upon its copying and distributing Fox’s copyrighted content without a license. Because the recorded broadcasts were indisputably copyrighted and unlicensed, TVEyes’ defense turned on application of the four-factor “fair use” defense codified in Section 107 of the Copyright Act. Under this test, the following factors are considered individually and collectively in determining if the use is fair: (i) the purpose and character of the use, (ii) the nature of the copyrighted work, (iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (iv) the effect of the use upon the potential market for the copyrighted work.
The first factor typically turns on whether the challenged use somehow transforms the copyrighted work. In a ruling that met with sharp disagreement in a concurring opinion, the majority ruled that the TVEyes service was “at least somewhat transformative” because it enabled its clients (i) to view all Fox programming over the prior 32-day period that concerned the topic of their search without needing to watch Fox on a 24/7 basis for the entire period, and (ii) to watch the video clips at a time and place that was convenient for them, and not when they aired on Fox. Unfortunately for TVEyes, this is the only fair use factor found to work in its favor.
After noting that the second factor (“the nature of the copyrighted work”) rarely plays a significant role in fair use determinations, the Second Circuit ruled that it played “no significant role here.” The Second Circuit then turned to the third and fourth factors.
The Court ruled that the third factor – the amount of the copyrighted work used – “clearly favored” Fox because TVEyes made available “virtually the entirety of the Fox programming that TVEyes viewers want to see and hear.” The Court reasoned that “given the brevity of the average news segment on a particular topic” providing TVEyes users with ten-minute clips likely conveyed to them “the entirety of the message conveyed by Fox to authorized viewers of the original.” 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.”
Finally, after reaffirming that the fourth fair use factor is the single most important element of the fair use analysis, the Court found that Fox had the “much stronger point.” This factor focuses on whether the challenged work constitutes a competing substitute for the original or its derivative so as to deprive the copyright owner of significant revenues that, instead, flow to the unauthorized copier. The Second Circuit found that TVEyes’ service undercut Fox’s ability to profit from developing and licensing searchable access to its copyrighted broadcasts to third parties. In making this finding, the Court pointed to TVEyes’ success as evidence that the market for searchable clips was worth millions of dollars before concluding that TVEyes was usurping a market that properly belonged to Fox.
The Second Circuit remanded the case to the District Court with instructions to enjoin TVEyes from making available to clients the ability to watch the 10-minute clips retrieved from TVEyes’ client search requests. Significantly, Fox did not challenge and the injunction does not apply to TVEyes’ search database. As such, there may remain an opportunity for TVEyes to combine its database with a retrieval and access component that does not flunk the third and fourth fair use factors. To accomplish this, TVEyes would likely need to construct a system far more like the one that did pass fair use muster in Google Books. However, because the “snippets” approved in Google Books were radically different from the 10-minute clips upon which TVEyes built its business, whether TVEyes would have the interest and ability to pursue such a redesign is far from clear.
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