On August 25, 2015, the Southern District of New York held that the archiving function of a media monitoring service was protected by fair use and that the e-mailing feature could qualify for fair use if certain protective measures were implemented, but that the downloading and “date-time” search functions were not.  Defendant TVEyes, Inc. (“TVEyes”) is a media-monitoring service that records all content on more than 1,400 television and radio stations and transforms the content into a searchable database. Subscribers are able to track when, where, and how words of interest are used in the media and can obtain transcripts and video clips of the portions of the television programs that use those words.

Plaintiff Fox News Network, LLC (“Fox News”) sued TVEyes for copyright infringement, seeking damages and an injunction barring TVEyes from copying and distributing clips of Fox News programs. TVEyes asserted the affirmative defense of fair use. The parties cross moved for summary judgment. In September 2014, the Court sustained TVEyes’ fair use defense as to TVEyes’ core function, finding that recording content, putting it into a searchable database, and upon a keyword query, allowing users to view short clip of the content for up to 32 days from the date of airing constituted fair use. While Fox News reports the news, TVEyes monitors what media reports as news. The Court found that TVEyes was unique because it provides a “reliable database of everything that television channels broadcast, twenty four hours a day, seven days a week.” Additionally, the factual nature of the clips offered by TVEyes weighed in favor of a finding of fair use. Finally, there was no evidence that TVEyes would displace Fox News in the market and TVEyes provided a substantial benefit to the public because there was no other company providing such a comprehensive service.

However, the Court reserved judgment with respect to four features of the service: archiving videos, downloading videos, sharing videos by e-mail and searching for content by date and time, rather than by keyword. After additional discovery with respect to those features, the Court asked for limited briefing on the following questions: (1) Whether each function in question was integral to TVEyes’ transformative purpose; and (2) Whether each function in question threatened Fox News’ derivative business.

Archiving

When a user locates a video clip through a TVEyes search, he or she can press a button to archive the clip, which lists the clip in the subscriber’s “Media Center.” The Media Center is the interface through which a user plays content on the TVEyes website. Archiving provides two benefits to a user. First, it allows users to revisit clips at later dates which they have already found. Second, an archived clips remains available to a user indefinitely, instead of expiring after 32 days.

TVEyes argued that the ability to archive video clips was integral to its service and the Court agreed. Requiring users to go through repeated searches in order to view previously identified clips would place needless obstacles in the path of prospective researchers, critics and commentators and would sharply curtail the value of TVEyes’ service. Without the ability to revisit content older than 32 days, longer term studies of the media’s treatment of particular subjects would be impossible. The ability to detect patterns and trends in news coverage was an essential feature of the transformative service that TVEyes provides. Moreover, Fox News did not identify any actual or potential market harm arising from archiving.

E-Mailing and Sharing 

TVEyes’ permits subscribers to share identified video clips with others by sending a URL link to the video on the TVEyes’ server. The recipient, by clicking the link, can play the video clip through his web browser, along with the transcript of the clip. Unless downloaded, the video clip remains on TVEyes’ service only; it does not reside on the user’s computer. The link is public, meaning the recipient does not need to possess TVEyes login credentials in order to access the video. Additionally, a user could use the feature to share a clip on social media or instant messaging.  TVEyes argued that the ability to send clips by e-mail was fair use because e-mail was the primary tool used to communicate and collaborate with co-workers, supervisors, and decision makers. TVEyes cited the examples of Congressional staffers sharing video clips among themselves or sharing clips with members of committees and caucuses.

The Court agreed that prohibiting e-mail sharing would prevent TVEyes’ users from realizing certain benefits of its transformative services. However, the current version of the e-mailing service did not discriminate between sharing a clip with a co-worker/supervisor/decision maker and sharing a clip with a friend. Thus, fair use could not be found unless TVEyes developed necessary protections. Without protections against indiscriminate sharing, TVEyes would risk becoming a substitute for Fox News’ own website, thereby impacting Fox News’ advertising revenue.

Downloading

When a subscriber identifies a clip, he or she can click a button to download the clip to his or her computer as a local media file. The clip can then by viewed offline, without requiring access to TVEyes’ server. The Court held that the downloading function did not constitute fair use. TVEyes is transformative because it allows users to search and monitor television news. Allowing users to download clips to keep forever and distribute freely was not essential to TVEyes’ transformative purpose. Although TVEyes argued that downloading was critical because it allowed for offline use, the Court noted that there were very few locations in the United States that lacked Internet connectivity. Moreover, convenience alone was not a ground for finding fair use.

Date-Time Search

In addition to searching by keyword, TVEyes subscribers can search by date and time. TVEyes argued that the date-time search function was a necessary complement to its keyword search because, often, a keyword search fails to locate the desired video segment. However, the Court found that the date-time search function did not constitute fair use because the feature was not a “search tool”, but rather a content-delivery tool for users who already know what they sought. A user would only be able to locate the matching segment through a date-time search if he or she already knew when (that is, the exact date and time) the desired program aired. Thus, the date-time search function was not transformative because users could procure the desired clip from Fox News or licensing agents, albeit for a fee.

TVEyes is a thoughtful analysis of the application of the fair use defense in the digital age.