Latest TVEyes Ruling A Mixed Bag: Archiving & Sharing Privately Is Fair Use; Downloading & Sharing Publicly Is Not

from the some-good,-some-bad dept

Last year, we wrote about a big fair use win by TV monitoring company TVEyes — a service used by governments, news companies and more to record, index and store TV broadcasts and make them searchable. Fox, a company that sometimes relies on fair use itself, sued TVEyes, alleging infringement and a violation of the infamous hot news doctrine. The court ruled pretty unambiguously in favor of fair use (yes, even as TVEyes is storing everything) for most of TVEyes basic operation (searching and indexing), and completely rejected the hot news claim. However, it did leave aside one area for further investigation: the features provided by TVEyes that allows users to save, archive, download, email and share clips as well as the feature for doing a “date-time search” (allowing users to retrieve video from a specific network based on the date and time of the broadcast. For those, the court wanted more evidence before deciding.

It has now ruled on that aspect and it’s a partial win for fair use and a partial loss, which may be troubling. The court declared the archiving function to be fair use. But the downloading and “date time search” functions are not fair use. The emailing feature could be fair use, “but only if TVEyes develops and implements adequate protective measures.”

Let’s look at the details. First, the court decides that the archiving function is fair use because it is integral to TVEyes’ overall service:

Democracy works best when public discourse is vibrant and debate thriving. But debate cannot thrive when the message itself (in this case, the broadcast) disappears after airing into an abyss. TVEyes’ service allows researchers to study Fox News’ coverage of an issue and compare it to other news stations; it allows targets of Fox News commentators to learn what is said about them on the network and respond; it allows other media networks to monitor Fox’s coverage in order to criticize it. TVEyes helps promote the free exchange of ideas, and its archiving feature aids that purpose.

Archiving video clips to remain stored beyond 32 days and to facilitate successive reference is integral to TVEyes’ service and its transformational purpose of media monitoring. And Fox has not identified any actual or potential market harm arising from archiving. I hold that the archiving function is fair use, complementing TVEyes’ searching and indexing functions.

As for emailing and sharing, there the court says it is fair use… if TVEyes includes a few protections:

I agree that to prohibit e-mail sharing would prevent TVEyes users from realizing much of the benefit of its transformative service. For example, members of Congress rely on TVEyes to be made aware of what the media has to say about the issues of the day and about them. But their interns and staffers, not they, sit at computers querying keywords of interest through the TVEyes portal, and then e-mail the results up the chain of command. Without e-mail, the Congressman would be limited to either sharing a computer with his staffer or else having the staffer describe the contents of the clip to the Congressman without showing him the clip. In practice, the former is unrealistic and the latter fails to deliver “the full spectrum of information . . . [including] what was said, [and] how it was said with subtext body language, tone of voice, and facial expression-all crucial aspects of the presentation of, and commentary on, the news.”

[….]

However, there is also substantial potential for abuse. In its current incarnation, TVEyes’ e-mailing feature cannot discriminate between sharing with a boss and sharing with a friend, nor between sharing for inclusion in a study and sharing a clip for inclusion in a client sales pitch. Fair use cannot be found unless TVEyes develops necessary protections. What limits should be placed on subscribers who share links through social media? What can prevent subscribers from sharing for purposes not protected by § 107? If TVEyes cannot prevent indiscriminate sharing, it risks becoming a substitute for Fox’s own website, thereby depriving Fox of advertising revenue.

This seems a bit strange to me, frankly. You still have to be a subscriber to make use of TVEyes, but then you can share clips freely online, which would seem to be a part of a reasonable news function, which should support fair use. But the court seems to think it’s only fair use if it’s kept “internally” via email.

Moving on to downloading, here, the court is not convinced that this is “integral” to the purpose of the product, citing a bunch of famed copyright cases, including the cases against Napster, ReDigi and MP3.com. Basically “downloading,” according to the court, must be infringing, and thus not fair use.

I believe that TVEyes’ downloading function goes well beyond TVEyes’ transformative services of searching and indexing…. TVEyes is transformative because it allows users to search and monitor television news. Allowing them also to download unlimited clips to keep forever and distribute freely may be an attractive feature but it is not essential. Downloading also is not sufficiently related to the functions that make TVEyes valuable to the public, and poses undue danger to content-owners’ copyrights.

The court completely rejects TVEyes argument that downloading is essential for offline use, because the court insists that broadband is basically available anywhere, so it’s unlikely anyone will really need the service online.

Finally, there’s the “date-time search” feature, which apparently is used in nearly 6% of all TVEyes’ searches. Again, the court doesn’t buy the fair use argument, saying that the date-time search isn’t so much a “search” as it is a way for people to find something they already know is there, and that makes it much closer to the original programming and thus less “transformative.”

The feature is not as much a “search” tool as a content delivery tool for users who already know what they seek. In such cases, TVEyes is not so transformational, since users should be able to procure the desired clip from Fox News or its licensing agents, albeit for a fee. Put simply, if a user wants to watch the first half of last Thursday’s 0 ‘Reilly Factor, the Court sees no reason why he should not be asked to buy the DVD/

Unlike TVEyes’ core business, its “Date-Time search” function duplicates Fox’s existing functionality. Fox’s contention that TVEyes’ Date-Time search is likely to cannibalize Fox News website traffic and sales by its licensing agents is persuasive.

It does seem a bit worrying when courts get to decide which features of your service are okay and which are not. We generally want markets determining innovative features, rather than judges. And this ruling seems… particularly subjective on a number of points. There is no four factors test being done in any of these. It basically just takes the original ruling that the search and indexing is fair use, and then just focuses on whether these features are “essential” to that service to determine if they, too, are fair use. Again, it’s troubling when a court is deciding if a feature that customers clearly like is “essential.” That’s not how innovation is supposed to work.

This case is still early and I expect that there will be appeals on both sides, so this ruling, by itself, isn’t that important yet. What happens next, in terms of how the appeals court rules, is where things will get really interesting.

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Companies: fox, news corp, tveyes

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Comments on “Latest TVEyes Ruling A Mixed Bag: Archiving & Sharing Privately Is Fair Use; Downloading & Sharing Publicly Is Not”

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24 Comments
Anonymous Coward says:

Seems rock-solid current law to me. Why does it distress you?

“It does seem a bit worrying when courts get to decide which features of your service are okay and which are not. We generally want markets determining innovative features, rather than judges.” — Sheesh. To begin with, courts are pretty broadly still going by common law on copyright, and this is about right in my view. Of course my view is not toward “monetizing” what others make, let alone stealing it. — Businesses are not immune to law, no matter how “innovative” and worthwhile you deem them. Get that out of your head, leads you astray often.

Yet again: Businesses cannot just re-publish the entirety of content that others make! That’s the key flaw here, as usual for Techdirt.

I’ve no problem with storage as such, likely a handy service, but glad to see the nice distinctions on broadcasting, indexing, and search.

Gwiz (profile) says:

Re: Seems rock-solid current law to me. Why does it distress you?

To begin with, courts are pretty broadly still going by common law on copyright,…

As you’ve been told multiple times before “common law copyright” or “natural right copyright” has been repudiated by both the US and the UK very early in the existence of copyright laws.

https://en.wikipedia.org/wiki/Common_law_copyright

There is a good reason for this. Common law property rights do not extend past the point you sell something. For example, I chop down trees on my property and make a chair. I have full property rights to that chair. If I sell that chair to someone else, they now have full property rights to that chair. Copyright goes against common law property rights by extending certain rights of the creator (or rights holder) well beyond the transfer of ownership. Copyright cannot be considered a common law right because it goes against the grain of traditional common law property rights.

Dan (profile) says:

Re: Re: Seems rock-solid current law to me. Why does it distress you?

“Courts are going by common law on copyright” is not at all the same as “courts are applying common-law copyright”, and neither has anything to do with your last paragraph.

“Common law” is a concept that applies in the English and American legal systems, and refers to the body of case law (either in general, or on a particular subject). It is generally subordinate to statutory law (i.e., law passed by the legislature), but may (at least in the US) supersede the statute if a constitutional question is involved.

In the US, there is a copyright statute (the federal Copyright Act), and there is also a large body of case law applying and interpreting that statute. That body of case law is accurately described as “the common law on copyright,” and is important when the statute is unclear, incomplete, and/or contradictory. It’s particularly important when fair use is an issue for two reasons: (1) section 107 gives almost no detail about the factors or how they are to be weighed, and (2) there’s a constitutional aspect to fair use that can even overrule the statute.

Your last paragraph is nonsense. Copyright can indeed be a common-law right, and in fact was a common-law right (as the wikipedia link you provided notes), notwithstanding its apparent conflict with “traditional common law property rights” (which is less of a conflict than an evolution). The reason that common-law copyright law isn’t followed in the United States is that it’s been replaced by statutory copyright law, not because “it goes against the grain” of anything.

Gwiz (profile) says:

Re: Re: Re: Seems rock-solid current law to me. Why does it distress you?

“Common law” is a concept that applies in the English and American legal systems, and refers to the body of case law (either in general, or on a particular subject). It is generally subordinate to statutory law (i.e., law passed by the legislature), but may (at least in the US) supersede the statute if a constitutional question is involved.

Yes. I do know this. Blue uses (based on previous exchanges) the term “common law copyright” more in reference to the “natural right” aspect of copyright and not the in terms of existing caselaw.

Your last paragraph is nonsense. Copyright can indeed be a common-law right, and in fact was a common-law right (as the wikipedia link you provided notes)…

I disagree with this. Copyright has always been a creature of statute. It was created wholly from statute withing the last couple hundred of years, as opposed to traditional common law, which were based on laws from ancient civilizations, religious teachings and common beliefs.

Gwiz (profile) says:

Re: Re: Re:2 Seems rock-solid current law to me. Why does it distress you?

To continue on with my last point. Copyright is not a common-law right and nor is it a natural right.

Congress and the Supreme Court have made this clear:

That an author at common law has a property in his manuscript, and may obtain redress against anyone who deprives him of it or by obtaining a copy endeavors to realize a profit by its publication cannot be doubted, but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work after the author shall have published it to the world.

The argument that a literary man is as much entitled to the product of his labor as any other member of society cannot be controverted. And the answer is that he realizes this product in the sale of his works when first published.[…]

Congress, then, by this act, instead of sanctioning an existing right, as contended for, created it.

– Wheaton v. Peters

The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural right that the author has in his writings, for the Supreme Court has held that such rights as he has are purely statutory rights, but upon the ground that the welfare of the public will be served and progress of science and useful arts will [be] promoted by securing to authors for limited periods the exclusive rights to their writings. The Constitution does not establish copyrights, but provides that Congress shall have the power to grant such rights if it thinks best. Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given. Not that any particular class of citizens, however worthy, may benefit, but because the policy is believed to be for the benefit of the great body of people, in that it will stimulate writing and invention, to give some bonus to authors and inventors.

– House Report on the Copyright Act of 1909

The first emphasis is SCOTUS recognizing that copyright differs from traditional property rights for the exact reason I stated – it extends past the transfer of ownership.

The next two emphases are SCOTUS and Congress stating that copyright is purely a creature of statute, as I also stated.

That One Guy (profile) says:

Always strive for redundancy in back-ups

‘TVEyes helps promote the free exchange of ideas, and its archiving feature aids that purpose.’

‘Allowing them also to download unlimited clips to keep forever and distribute freely may be an attractive feature but it is not essential. Downloading also is not sufficiently related to the functions that make TVEyes valuable to the public, and poses undue danger to content-owners’ copyrights.’

I can’t help but think that the court undercuts their own argument here. If TVEyes archiving and saving something is serving the public by ensuring that footage isn’t lost, then would it not be even better if as many people as possible also had copies, should something happen to TVEyes’ archives?

If a file is only backed up in one place, and something happens to it, then that’s it, the file is gone. If multiple people have copies though, there are much better odds that what was ‘lost’ can be recovered if needed.

tqk (profile) says:

Re: Always strive for redundancy in back-ups

If TVEyes archiving and saving something is serving the public by ensuring that footage isn’t lost, then would it not be even better if as many people as possible also had copies, should something happen to TVEyes’ archives?

Even better, what does it matter where it’s archived if it’s already been determined that it’s allowed to be archived? I suspect this is yet another case of a judge who only barely understands tech making distinctions based on his misunderstanding of it. After all, his assumption that everyone is always able to be connected via ubiquitous broadband is laughable, hilariously so.

Anonymous Coward says:

Allowing them also to download unlimited clips to keep forever and distribute freely may be an attractive feature but it is not essential. Downloading also is not sufficiently related to the functions that make TVEyes valuable to the public, and poses undue danger to content-owners’ copyrights.’

But isn’t this what their business does , Create archives for later discussion and further study , let’s be realistic here scientific research looks further ahead than a few days colleges are popping new researchers out everyday, so adding a do not download (which is TVeyes business model seems pretty idiotic ) but hey ..I’m just a concerned citizen , I don’t count in the eyes of the law.

Anonymous Coward says:

Except for the subscription, how is TVeyes different from other DVRs/NVRs on the market? All can store, time/date search, and export their imagery. You can mark any imagery to be preserved (not recorded over) until you unmark. All are intended for off-line use; the only reasons to be online is remote monitoring, remote administration, and archiving imagery offsite. Some DVR/NVRs even have apps that you can control the unit and view imagery from your smart phone.

PaulT (profile) says:

“Put simply, if a user wants to watch the first half of last Thursday’s 0 ‘Reilly Factor, the Court sees no reason why he should not be asked to buy the DVD/ “

Is last Thursday’s O’Reilly Factor available on DVD? Or, available for purchase anywhere?

If not, the halfwits in the court might try to see where the problem is rather than ruling based on an alternative that doesn’t exist.

John David Galt (profile) says:

Website ad revenue? Really?

If TVEyes cannot prevent indiscriminate sharing, it risks becoming a substitute for Fox’s own website, thereby depriving Fox of advertising revenue.

So what? If I went to Fox’s website I’d have ad-blockers on anyway. Don’t try to tell me that’s infringement, since I’m neither copying nor publicly performing Fox’s work at all.

PaulT (profile) says:

Re: Website ad revenue? Really?

As we’re commonly reminded here it’s still considered “piracy” if you access content in a way other that demanded by the rights holder, no matter how legal. Even if you pay for content or pay a premium to access it, (see: accusations of “piracy” against those who pay for Netflix + a VPN service to access US Netflix content).

Their business model is sacrosanct, even if it’s demonstrably flawed or failing and people show they’re willing to pay more by a different method.

nasch (profile) says:

Re: Re:

Pesky laws. Do away with all of them, amirite?

To elaborate a bit – Mike’s statement really boils down to an argument that businesses should not be subject to oversight by courts. Courts shouldn’t get to decide which features of your service are OK? Actually that’s pretty much the core of what a court is for: deciding what is and what is not OK. If a business is sued for fraudulent practices, would you complain that we don’t want courts deciding what parts of their service are OK, and we should leave it to the market to decide? Assuming you would not take that position, how is this any different just because this case is about copyright?

There is no four factors test being done in any of these.

That seems like a legitimate concern.

tqk (profile) says:

Re: Re: Re:

Courts shouldn’t get to decide which features of your service are OK? Actually that’s pretty much the core of what a court is for: deciding what is and what is not OK.

No they don’t. Lawmakers do. Courts interpret those laws enforcing the will of lawmakers. Well, in theory, at least. It falls apart when neither the lawmakers nor courts understand what it is they’re dealing with.

nasch (profile) says:

Re: fair use (reply to #17)

They decided that because VCRs have “substantial non-infringing uses,” it was OK to make them.

I think a product or service having substantial non-infringing uses is not the same thing as finding that a particular feature is integral to the (already determined as fair use) service, and is therefore OK. It would be more like the VCR being found as fair use, and deciding that a play button is integral to its use and is OK but a pause button is not, so the pause button may or may not be OK.

Rekrul says:

It is REALLY frustrating to see the ways that technology is being hamstrung to please legacy industries. We now have the technology to easily make a searchable online archive of every TV show that has ever aired (well, the ones that aren’t lost), but the copyright industry won’t allow it. They still want to pretend that nothing has changed.

This would be like if the automobile industry had only been allowed to make cars that couldn’t go any faster than horses and which periodically required a “cool down” period equivalent to horses needing to rest. Or if DVDs weren’t allowed to be interactive, needed to be faux “rewound” before you could watch them again, and were designed to degrade with each viewing so that they would eventually need to be replaced.

Technology today is like a pack of race horses wanting to run, but the legacy industries keep breaking their legs.

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