The 2nd Circuit Contributes To Fair Use Week With An Odd And Problematic Ruling On TVEyes

from the fair-us-has-no-predictive-value dept

For years, we've quoted a copyright lawyer/law professor who once noted that the standards for fair use are an almost total crapshoot: nearly any case can have almost any result, depending on the judge (and sometimes jury) in the case. Even though there are "four factors" that must be evaluated, judges will often bend over backwards to twist those four factors to get to their desired result. Some might argue that this is a good thing in giving judges discretion in coming up with the "right" solution. But, it also means that there's little real "guidance" on fair use for people who wish to make use of it. And that's a huge problem, as it discourages and suppresses many innovations that might otherwise be quite useful.

Case in point: earlier this week the 2nd Circuit rejected a lower court decision in the Fox News v. TVEyes case. If you don't recall, TVEyes provides a useful media monitoring service that records basically all TV and radio, and makes the collections searchable and accessible. It's a useful tool for other media companies (which want to use clips), for large PR firms tracking mentions, and for a variety of other uses as well. The initial ruling was a big win for fair use (even when done for profit) and against Fox News' assertion of the obsolete doctrine of "Hot News" misappropriation. That was good. However, that initial ruling only covered some aspects of TVEyes' operations -- mainly the searching and indexing. A second ruling was more of a mixed bag, saying that archiving the content was fair use, but allowing downloading the content and "date and time search" (as opposed to content search) was not fair use.

Some of this was appealed up to the 2nd circuit -- specifically that second ruling saying parts of the service were not fair use. Thankfully, Fox didn't even bother appealing the "hot news" ruling or the "fair use on index search" ruling. As you'd expect, the court runs through a four factors test, and as noted above, the analysis is... weird. Once again, it seems clear that the court decided Fox should win and then bent its four factors analysis to make that happen. The court separates out TVEyes operations into two things: "Search" and "Watch." Whereas the lower court separated out "Watch" into various components, here the court decides that the entire "Watch" part is not fair use, and thus there's no need to examine the components (the "Search" part remains covered by fair use -- which, again, Fox did not challenge).

First, the court explores "the purpose and character" of the use, and whether or not its transformative, which would lean towards fair use. Much of the discussion focuses on the Google Books case, in which the same court found that Google scanning books and making them searchable was transformative and thus, fair use. Here, the court notes the similarities that make TVEyes transformative, which is a good start:

TVEyes’s copying of Fox’s content for use in the Watch function is similarly transformative insofar as it enables users to isolate, from an ocean of programming, material that is responsive to their interests and needs, and to access that material with targeted precision. It enables nearly instant access to a subset of material‐‐and to information about the material‐‐that would otherwise be irretrievable, or else retrievable only through prohibitively inconvenient or inefficient means.

Sony Corporation of America vs. Universal City Studios, Inc. is instructive. See 464 U.S. 417 (1984). In Sony, a television customer, who (by virtue of owning a television set) had acquired authorization to watch a program when it was broadcast, recorded it in order to watch it instead at a later, more convenient time. That was held to be a fair use. While Sony was decided before “transformative” became a term of art, the apparent reasoning was that a secondary use may be a fair use if it utilizes technology to achieve the transformative purpose of improving the efficiency of delivering content without unreasonably encroaching on the commercial entitlements of the rights holder.

The Watch function certainly qualifies as technology that achieves the transformative purpose of enhancing efficiency: it enables TVEyes’s clients to view all of the Fox programming that (over the prior thirty‐two days) discussed a particular topic of interest to them, without having to monitor thirty‐two days of programming in order to catch each relevant discussion; and it eliminates the clients’ need even to view entire programs, because the ten most relevant minutes are presented to them. Much like the television customer in Sony, TVEyes clients can view the Fox programming they want at a time and place that is convenient to them, rather than at the time and place of broadcast. For these reasons, TVEyes’s Watch function is at least somewhat transformative.

Of course the "at least somewhat" qualifier on "transformative" should be a foreshadowing of what comes next. First, the court notes that the commercial nature of TVEyes walks back at least some of its fair use argument, but concludes the first factor goes into TVEyes' corner "albeit slightly."

On the 2nd factor, "the nature of the copyrighted work," the court correctly notes that this is kind of a superfluous factor that almost never matters in any copyright lawsuit. The 3rd factor is a big one: "the amount and substantiality of the portion used." In the Google Books ruling, this same court correctly and usefully pointed out that this is not about the "percentage of the overall" that is used, but rather if the user was using more than is necessary for the use at hand. Under that understanding, it would seem that this should lean towards TVEyes' position, since it would need to offer up all the content as part of its service. But the court feels otherwise.

This factor clearly favors Fox because TVEyes makes available virtually the entirety of the Fox programming that TVEyes users want to see and hear. While “courts have rejected any categorical rule that a copying of the entirety cannot be a fair use,” “a finding of fair use is [less] likely . . . when the copying is extensive, or encompasses the most important parts of the original.” Id. at 221. In this respect, the TVEyes Watch function is radically dissimilar to the service at issue in Google Books.

What kills TVEyes here in the Google Books comparison is that Google Books had a "snippet" function that only showed parts of the book, rather than the whole thing:

Googleʹs snippet function was designed to ensure that users could see only a very small piece of a book’s contents. Each snippet was three lines of text, constituting approximately one‐eighth of a page; a viewer could see at most three snippets per book for any searched term, and no more than one per page. Users were prevented from performing repeated searches to find multiple snippets that could be compiled into a coherent block of text. Approximately 22% of a book’s text was “blacklist[ed]”: no snippet could be shown from those pages. Id. at 222. And snippets were not available at all for such books as dictionaries or cookbooks, in which a snippet might convey all the information that a searcher was likely to need. While the snippets allowed a user to judge whether a book was responsive to the user’s needs, they were 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.

TVEyes redistributes Fox’s news programming in ten‐minute clips, which‐‐given the brevity of the average news segment on a particular topic‐‐likely provide TVEyes’s users with all of the Fox programming that they seek and the entirety of the message conveyed by Fox to authorized viewers of the original. Cf. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 564‐65 (1985) (finding no fair use when the copying involved only about 300 words, but the portion copied was “the heart of the book”). TVEyes’s use of Fox’s content is therefore both “extensive” and inclusive of all that is “important” from the copyrighted work.

TVEyes was hoping that by cutting things down to 10 minute clips that would support the fair use snippets argument, but it didn't really fly.

The fourth factor is where things get really odd and potentially dangerous to fair use. This is "the effect on the market," which is often the determining factor on fair use. For many (though, thankfully not all) courts, if they see that you're somehow diminishing the original market, you lose on fair use. Many copyright holders have tried to obliterate all fair use cases by basically arguing that the fact that a for-profit entity is making use of their work proves there's a market for the works, and thus only the copyright holder should be entitled to that market, or else the user is clearly diminishing the market (even if the copyright holder is not even in that market). In short "if there's a market anywhere related to this content, the copyright holder should own that entire market." Many courts have rejected that line of thinking as it effectively obliterates fair use. But... not this court.

The success of the TVEyes business model demonstrates that deep‐pocketed consumers are willing to pay well for a service that allows them to search for and view selected television clips, and that this market is worth millions of dollars in the aggregate. Consequently, there is a plausibly exploitable market for such access to televised content, and it is proper to consider whether TVEyes displaces potential Fox revenues when TVEyes allows its clients to watch Fox’s copyrighted content without Fox’s permission.

Such displacement does occur. Since the ability to re‐distribute Fox’s content in the manner that TVEyes does is clearly of value to TVEyes, it (or a similar service) should be willing to pay Fox for the right to offer the content. By providing Fox’s content to TVEyes clients without payment to Fox, TVEyes is in effect depriving Fox of licensing revenues from TVEyes or from similar entities. And Fox itself might wish to exploit the market for such a service rather than license it to others. TVEyes has thus “usurp[ed] a market that properly belongs to the copyright‐holder.” Kirkwood, 150 F.3d at 110. It is of no moment that TVEyes allegedly approached Fox for a license but was rebuffed: the failure to strike a deal satisfactory to both parties does not give TVEyes the right to copy Fox’s copyrighted material without payment.

In short, by selling access to Fox’s audiovisual content without a license, TVEyes deprives Fox of revenues to which Fox is entitled as the copyright holder. Therefore, the fourth factor favors Fox.

That's... bad. This will undoubtedly be quoted in lots of other copyright/fair use cases, and used to argue that any successful market involving the fair use of a copyright-covered work will deprive the copyright holder of license revenue. As EFF notes in its analysis of the ruling, this appears to completely ignore a fundamental principle of how fair use works:

If use of someone’s words was contingent on the permission of the person who said them, you would never be able to critique what was being said. Fair use allows the use of copyrighted material without permission for this very reason. It’s not in the interest of anyone to license out clips of their material for the purpose of it being debunked, which is why the service provided by TVEyes is so valuable.

Jonathan Band, over at the Disruptive Competition Project finds more to like in the ruling -- specifically citing the fact that much of the ruling upholds the important fair use parameters set forth in the Google Books ruling and doesn't really mess with those. He also doesn't seem as bothered by that fourth factor analysis, but does worry about one aspect of the transformative analysis: the part that cites the Sony Betamax ruling:

In support of its transformativeness conclusion, the panel cited the Supreme Court’s Betamax decision, which found that consumers’ time shifting of television programming was a fair use. The panel stated that

Betamax’s “apparent reasoning was that a secondary use may be a fair use if it utilizes technology to achieve the transformative purpose of improving the efficiency of delivering content without unreasonably encroaching on the commercial entitlements of the rights holder.” However, most observers don’t view Betamax as a transformative use. And there is no reason to treat Betamax as a transformative use case; transformativeness is not a requirement for fair use. The panel’s odd reading of Betamax compelled a concurring decision by Judge Kaplan (a district court judge sitting by designation) that strongly disagreed with this interpretation. Indeed, the panel itself was not that convinced by its reasoning. Later in its first factor discussion, it acknowledged that “the Watch function has only a modest transformative character because, notwithstanding the transformative manner in which it delivers content, it essentially republishes that content unaltered from its original form, with no ‘new expression, meaning or message.’”

The other issue that the court reviewed was the incredibly broad permanent injunction that the district court had issued on TVEyes after finding some of its service not to be fair use. Without much discussion, the 2nd Circuit notes that since that injunction was based on mistakes about what was fair use, it's sending that back to the lower court to review.

It is possible that this will all get appealed to the Supreme Court, though it's not at all clear that this is a case the Supreme Court would actually take (and, there's an argument that a majority of the Supreme Court may be fans of Fox News, in which case, Fox may get something of an edge...). However, this does seem like yet another in a long list of copyright cases, where we see useful innovations likely killed off by copyright. Having a system for professionals to monitor the media and make use of it is incredibly useful. And yet, with this ruling such things can be massively restricted. And, on top of that, with the language in the 4th factor above, we should all be worried about what other innovations will now be shut down (or never even started) going forward.


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 2 Mar 2018 @ 9:46am

    In short, by selling access to Fox’s audiovisual content without a license, TVEyes deprives Fox of revenues to which Fox is entitled as the copyright holder. -- That's... GOOD! This will undoubtedly be quoted in lots of other copyright/fair use cases!

    Yet again, you simply cannot get into your mind that USING SOMEONE ELSE'S CONTENT IS ILLEGAL.

    Sheesh. How many more cases will it take before you even begin to admit that your piratey notions are simply not going to be allowed? -- And more importantly, that the Right stated in the Constitution that Authors have EXCLUSIVE CONTROL? -- It's not a grant, not an option, but simply stating that the gov't will PROTECT that Right.

    And, sheerly on that you and pirates are WRONG yet again: HA, HA!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Mar 2018 @ 9:57am

      Re:

      And you cannot get it through your thick head that fair use can be commercial, and unless people can quote as much of the work as is needed they cannot criticize the work, or discuss errors in the work.

      reply to this | link to this | view in chronology ]

    • identicon
      Qwertygiy, 2 Mar 2018 @ 10:03am

      Re: In short, by selling access to Fox’s audiovisual content without a license, TVEyes deprives Fox of revenues to which Fox is entitled as the copyright holder. -- That's... GOOD! This will undoubtedly be quoted in lots of other copyright/fair use cas

      Sorry, you seem to misunderstand the implication of this.

      Fair use means that I can use a clip of Fox News' broadcast of one of President Trump's speeches in order to comment upon said speech.

      Fair use means that I can use a clip of a Fox News anchor making a racist comment in order to prove that the racist comment was made.

      Fair use means that I can use a clip of a Fox News aerial shot in order to show the damage caused by a major storm.

      Fair use means that I can use a clip of a Fox News interview with Robert Downey Jr. in order to comment upon what his remarks might mean for his newest film role.

      That is what this ruling puts into danger: the idea that, if I make *any* profit off of these clips whatsoever, including merely from YouTube ad revenue, then I am violating the copyright of Fox News.

      This has not been the case for a very long time. See any sports broadcast on TV. ESPN will show clips of a game that was broadcast on CBS, or Fox will show highlights of a game from NBC. They aren't flat-out retransmitting the whole broadcast, just showing small portions of it, because it is relevant to their own content and there is no equally-relevant alternative for them to use.

      If fair use no longer applies just because there is a potential cash market involved, say goodbye to 90% of historical photographs on Wikipedia, 90% of YouTube political videos, and any screenshot posted to Twitter.

      reply to this | link to this | view in chronology ]

    • icon
      crade (profile), 2 Mar 2018 @ 10:03am

      Re: In short, by selling access to Fox’s audiovisual content without a license, TVEyes deprives Fox of revenues to which Fox is entitled as the copyright holder. -- That's... GOOD! This will undoubtedly be quoted in lots of other copyright/fair use cas

      "How many more cases will it take before you even begin to admit that your piratey notions are simply not going to be allowed"

      Well, it only takes one going the other way to prove your asinine assertion is completely and utterly wrong, and there has been a more than one, we would have to be pretty dumb to believe you.

      reply to this | link to this | view in chronology ]

    • icon
      Dan (profile), 2 Mar 2018 @ 10:39am

      Re: In short, (blah blah blah)

      Yet again, you simply cannot get into your mind that USING SOMEONE ELSE'S CONTENT IS ILLEGAL.

      That would be because it isn't true. It never has been true, and it isn't true today. We can hope it never will be true, but my crystal ball is in the shop. What you believe to be the law, simply isn't what the law is.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Mar 2018 @ 10:40am

      Re: In short, by selling access to Fox’s audiovisual content without a license, TVEyes deprives Fox of revenues to which Fox is entitled as the copyright holder. -- That's... GOOD! This will undoubtedly be quoted in lots of other copyright/fair use cas

      Interesting argument, I guess Fox News has to stop using anyone else's work in their reporting without signing a licensing agreement with them? How many YouTube videos are shown? how about Instagram photos? Facebook posts? Tweets? Obviously based on your argument these are under the EXCLUSIVE CONTROL of the authors and there can be no use of any of the information contained in them without an agreement in place right?

      reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 2 Mar 2018 @ 11:08am

      Re: TVEyes deprives Fox of revenues

      It's not about revenue; it's about accountability.

      Palin and Santorum used to complain about the lib'rul lamestream media dishonestly attacking them by quoting them verbatim. The Trump clown car does it on a daily basis, issuing denials that Trump ever said what he said on camera or Twitter the day before.

      Fox News cheerfully backs those lies, while adding an assortment of their own.

      Fox isn't losing revenue to TVEyes. This is about the horror of having their own words, and those of Trump, Palin and others searchable and quoted back to them.

      USING SOMEONE ELSE'S CONTENT IS ILLEGAL.

      But not when it's fair use.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Mar 2018 @ 11:27am

      common law says commercial fair use is ok

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 2 Mar 2018 @ 3:33pm

      What's most funny about blue's rant above is that "fair use" came out of "common law" and was eventually rolled into statutory law. So for someone who so focuses on "common law" to now try to deny something that evolved via common law is... well... standard operating procedure for someone who clearly has no idea what common law actually means.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Mar 2018 @ 10:39am

    Interesting argument, I guess Fox News has to stop using anyone else's work in their reporting without signing a licensing agreement with them? How many YouTube videos are shown? how about Instagram photos? Facebook posts? Tweets? Obviously based on your argument these are under the EXCLUSIVE CONTROL of the authors and there can be no use of any of the information contained in them without an agreement in place right?

    reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 2 Mar 2018 @ 11:15am

      Re:

      Careful there.

      I'm expecting that as Mueller closes in, Trump will try to control the story by licencing it Olympics-style to Fox News, Breitbart or InfoWars.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Mar 2018 @ 10:44am

    I don't believe it was ever intended for a copyright holder to be able to use their "exclusive Right to their respective Writings" to explicitly deny access to a creative work. How does it "promote the Progress of Science and useful Arts" to say "I made this, but I'm not using it and nobody else can either?"

    reply to this | link to this | view in chronology ]

    • identicon
      Wendy Cockcroft, 5 Mar 2018 @ 5:37am

      Re:

      It wasn't, but that is what it's become. This is WHY I rail against the use of the term "Intellectual property." It reinforces the notion that people own what they create as if their efforts owe nothing to the efforts of others.

      As Mike pointed out some time ago there are property-like aspects to copyright, etc., in that you can transfer the rights to other people, but that is as far as it goes; however long the term is, there's still a date on which it ends. Therefore, if we own what we create as property at all, it's leasehold, not freehold, per the letter of the law.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Mar 2018 @ 1:20pm

    Sheesh....when will people remember that Fair Use is about whats fair to the public, not the content creatord

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Mar 2018 @ 3:52am

    Since Disney now owns fox, I want to see a remake of some Disney classic songs with a fox-theme.

    Be our guest, be our guest, we hate african-americans, and all the rest.
    Be our guest, be our guest, see all the bile Mr Murdoch tried to get off his chest.

    reply to this | link to this | view in chronology ]

  • identicon
    tp, 3 Mar 2018 @ 10:48am

    End run around copyrights...

    Guess they tried to run around copyright and failed. They seem to rely on Sony vs Betamax, Google book scanning paperwork and tons of other cases to reason why their activity is legal. Unfortunately the main problem is that they don't have a license from the Fox to display the content, and no amount of "we displayed it in full for our clients, but it's still supposedly legal without a license" is going to help their case.

    Fair use seems kinda bad choice in this case - none of their arguments got around the problem that they failed to secure licenses from the content owners.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Mar 2018 @ 4:38pm

      Re: End run around copyrights...

      Copyright by law has limitations that balance the public interest against a government granted monopoly to the rights holder free of charge on the condition they follow the limitations on it and releases the work to the public domain after the copyright term ends all in the name of advancing the useful arts. Deny that and the public also gets to deny copyright in its entirety. Which is only fair since rights holders are constantly reneging on on their end of the bargain by advocating for ever longer terms and attacking fair use and the public domain.

      reply to this | link to this | view in chronology ]

      • identicon
        tp, 4 Mar 2018 @ 10:49am

        Re: Re: End run around copyrights...

        > Deny that and the public also gets to deny copyright in its entirety. Which is only fair since rights holders are constantly reneging on on their end of the bargain

        There's always alternative to _not use_ the content. Can't they create their own content -- they wouldn't need to answer to these paperworks if they had actually created their own tv channels and collected that content to their clients. But no, they must have Fox. Even without proper licenses.

        reply to this | link to this | view in chronology ]

        • identicon
          Wendy Cockcroft, 5 Mar 2018 @ 5:40am

          Re: Re: Re: End run around copyrights...

          You're pretending that Fox creates its content in a vacuum. It doesn't. It relies on the creativity of others to function. Now imagine them asking for licences for "All The Things!" They'd go bankrupt.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Mar 2018 @ 12:02am

      Re: End run around copyrights...

      Damn, the fact that "fair use" exists just makes you piss your pants, don't it?

      reply to this | link to this | view in chronology ]

      • identicon
        tp, 4 Mar 2018 @ 11:26am

        Re: Re: End run around copyrights...

        > the fact that "fair use" exists just makes you piss your pants, don't it?

        Fair use just never was too useful.

        It's suitable for situation where author remembers some quotes from other works, while writing his own novel, but fails to filter out influences from other works. Like when his novel/book has 300 pages of well designed text, but then 3 words are directly copied from some other work. In this situation "fair use" protects the author from copyright infringement lawsuits.

        But copying the whole movie in it's entirety -- that isn't suitable usage of "fair use".

        reply to this | link to this | view in chronology ]

        • identicon
          Wendy Cockcroft, 5 Mar 2018 @ 5:42am

          Re: Re: Re: End run around copyrights...

          Even entire copies of something can be fair use depending on the context in which the work is used.

          For example if I copy an entire movie I have bought on DVD so I can watch it on different devices that's fair use, isn't it? Or must I buy the film in its different formats so I can watch it on different devices in different locations?

          reply to this | link to this | view in chronology ]

          • identicon
            tp, 5 Mar 2018 @ 9:48am

            Re: Re: Re: Re: End run around copyrights...

            > if I copy an entire movie I have bought on DVD so I can watch it on different devices that's fair use

            Hum nope. If you actually bought the copy, you can argue that you have a license to the content - when you transfer money, that money must have a product in exchange, and thus you get a license to the content. Fair use is never reached in that situation, since you have significantly better defense.

            reply to this | link to this | view in chronology ]


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