Another Step In The Long March From Campbell v. Acuff-Rose Toward Fair Use Free-For-All?

Fox News Network, LLC v. TVEyes, Inc., 2014 WL 4444043 (S.D.N.Y. Sept. 9, 2014)

TVEyes is a media-monitoring subscription service that "records the entire content of television and radio broadcasts and creates a searchable database of that content." This service allows subscribers to search keywords or phrases to determine and review an aggregation of instances of the search term appearing in the media. Subscribers include businesses and governmental agencies such as the White House, United States Army, and local and state police departments; the service is not available to members of the general public. Clips are limited to ten minutes in length, and a majority of the clips are two minutes or less; users are required to agree to use the clips for internal purposes only.

Fox News took issue with TVEyes' commercialization of its copyrighted broadcasts, and sued for infringement. It contended that TVEyes' service would have a detrimental effect on the existing market for rebroadcasts of its copyrighted content, which Fox News made available online and also licensed to third parties.

TVEyes raised a fair use defense, and both sides moved for summary judgment. The court began with the proposition that "[t]ransformation almost always occurs when the new work 'does something more than repackage or republish the original copyrighted work.'" (Slip op. at 13, citing Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014).)

The court noted that "there is a strong presumption in favor of fair use for the defendant" when the copied work is being used for one of the purposes listed in § 107, such as criticism, comment, news reporting, teaching, scholarship, or research. It also observed that TVEyes's service, by providing "the actual images and sounds depicted on television" as well as "the news information itself," offered a "transformative" service "that no other content provider provides." The court found the TVEyes service analogously "transformative" to the searchable database of scanned books at issue in Authors Guild v. HathiTrust and thumbnail images shown in search engine results as in Perfect 10 v. Amazon.com, but distinguished a rare recent case in which a court had found that the defendant, a news monitoring service for print news that aggregated content for subscribers based on keywords, had failed to prove its fair use defense. Associated Press v. Meltwater U.S. Holdings, 931 F. Supp. 2d 537 (S.D.N.Y. 2013).

Thus, the court decreed...