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
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'
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.