Last year, Fox News sued (PDF) a media-monitoring service called TVEyes, which allows its clients to search for and watch clips of TV and radio stations.
Fox lawyers argued the service violated copyright law and should be shut down. In a ruling (PDF) published yesterday, US District Judge Alvin Hallerstein disagreed, finding that TVEyes' core services are a transformative fair use.
It's a significant digital-age fair use ruling, one that's especially important for people and organizations who want to comment on or criticize news coverage.
Keeping an eye on television
TVEyes constantly records more than 1,400 television and radio stations, using closed caption and speech-to-text technology to make a comprehensive and searchable database for its subscribers, who generally pay $500 per month for the service. The company has more than 2,200 subscribers, including the White House, 100 members of Congress, the Department of Defense, as well as big news organizations like Bloomberg, Reuters, ABC, and the Associated Press.
The service is used by a wide range of clients who want to keep an eye on the media, from police departments seeking to know how widely a public safety announcement has disseminated, to members of Congress who want to know what's being said about them.
It's also—perhaps not coincidentally—used by media critics, including those who keep an eye on Fox News. For instance, Media Matters for America has used TVEyes to analyze Fox News' Benghazi-flavored coverage of Hillary Clinton, as well as what it calls the network's "selective outrage" over gay rights.
One common use for TVEyes is to let users search for a keyword to find out when a term was mentioned in the news, then view a video clip that starts 14 seconds before the keyword is mentioned, and goes on for up to 10 minutes. Most clips are shorter than two minutes.
Users can also download and save the clips and share them via social media or e-mail. TVEyes subscribers all agree to only use downloaded clips for "internal purposes" like review, analysis, or research.
In Fox's view, those products all compete unfairly with its own TV clip licensing, which is done through ITN Source; that company maintains a library of 80,000 Fox News videos and is searchable using keywords. Through ITN Source, Fox News has made about $2 million in licensing fees.
“Arch of an Eyebrow”
TVEyes relied on legal precedents allowing for electronic cataloging of book material, including the Authors Guild v. Google case, in which a district court judge found that Google Books' copying into a database, then showing text snippets, created a "highly transformative" database that was protected by fair use.
Fox News, meanwhile, looked to precedents in which "defendants were copying the plaintiff's work and then selling it for the very same purpose as plaintiff," wrote Hallerstein. The one exception was Associated Press v. Meltwater, in which a court ruled that a digital news-clipping service wasn't fair use.
There, Hallerstein saw distinctions. Meltwater was dealing with text, which didn't show "the actual images and sounds depicted on television," as TVEyes does. Those images can be "as important as the news information itself—the tone of voice, arch of an eyebrow, or upturn of a lip can color the entire story, powerfully modifying the content."
By indexing and excerpting all TV content, "TVEyes provides a service that no content provider provides."
Also, Meltwater's gleaning of print news stories was crawling the Internet for the same information that would be available to a determined searcher. TVEyes created a comprehensive database of what's broadcast on television, 24 hours a day, seven days a week. "That, in and of itself, makes TVEyes' purpose transformative and different in kind from Meltwater's," wrote Hallerstein.
Fox News failed to show that the clips could be watched sequentially, or that TVEyes could be used as a substitute for Fox News' channels.
Finally, and perhaps most importantly, Hallerstein wrote that while TVEyes was a for-profit company, it also provided a "substantial benefit to the public." He explained:
TVEyes subscribers use this service to comment on and criticize broadcast news channels. Government bodies use it to monitor the accuracy of facts reported by the media so they can make timely corrections when necessary. Political campaigns use it to monitor political advertising and appearances of candidates in election years. Financial firms use it to track and archive public statements made by their employees for regulatory compliance. The White House uses TVEyes to evaluate news stories and give feedback to the press corps. The United States Army uses TVEyes to track media coverage of military operations in remote locations, to ensure national security and the safety of American troops. Journalists use TVEyes to research, report on, compare, and criticize broadcast news coverage. Elected officials use TVEyes to confirm the accuracy of information reported on the news and seek timely corrections of misinformation.
Those benefits outweighed the possibility of market harm for Fox News, which was small in any case.
Hallerstein also disposed of other non-copyright claims brought by Fox News, including a "Hot News misappropriation claim, as well as a state-law misappropriation claim, finding they were preempted by copyright.
Not quite over
While Hallerstein ruled that TVEyes' core business is protected by fair use, he didn't rule on a few features. Features allowing subscribers to "save, archive, download, email and share clips" and use a "date and time search function" weren't decided on yesterday. "The factual record should be further developed before I can decide this issue," wrote Hallerstein.
An additional hearing is scheduled for October 3.
In an e-mail to Ars, TVEyes CEO David Ives said he was "very pleased" with the decision, declining to comment further.
A Fox News spokesperson emphasized the unfinished parts of the case, stating via e-mail:
The Court only ruled that a specific portion of TVEyes’ service — its keyword search function—was fair use. The Court expressly said that it required more information to decide whether TVEyes’ other features—including allowing video clips to be archived, downloaded, emailed, and shared via social media—were fair use.
Since keyword searches represent 94.5 percent of the clips played on TVEyes, however, the bulk of their business looks safe. The remaining issues are add-on features to the core business—albeit important ones. Saving clips, especially, is vital for any organization wanting to research news coverage over time, since the TVEyes database holds only 32 days of content.
While the TVEyes ruling is good news for fair use, it's important to remember that a key part of the ruling is based on its "internal use only" rule. Anyone hoping to use the power of digital TV-clipping in public will have to fight their own fair use battle. A company called Redlasso tried to give bloggers the ability to watch, clip, and post TV shows, but was sued in 2008 and promptly shut down.
reader comments
49