TVEyes blindsided: Fox News defeats search engine in copyright spat

A US appeals court has backed Fox News in the broadcaster's copyright-infringement battle against online telly streamer TVEyes.

Essentially, TVEyes was showing clips of Fox News on its website alongside text transcripts of the reports. Fox News took the biz to a district court, alleging copyright infringement, however the site fended off the legal barrage by successfully claiming its streaming was fair use.

Fox News last year appealed against that finding to the second circuit in New York, which on Tuesday this week overturned the lower court's fair-use ruling. This is somewhat bad news for the website.

Directly

TVEyes described itself as a “global search engine for TV and radio”, and has been likened to a media-monitoring outfit. It doesn't just feature Fox News packages – it tracks thousands of outlets, and their output, across the globe. Subscribers can search for keywords in video and audio news reports, and get links to clips in which those words were spoken, allowing the stories to be shared or linked to.

However, unlike Google or Bing, TVEyes allows netizens to watch or listen to other people's material directly and in full from its own servers, for up to ten minutes a clip. It’s as if Google was hosting The Register’s webpages without our permission, allowing folks to bypass El Reg, its comments, and its ads entirely.

In recent years, some American courts have been kind to technology companies that, in the face of copyright claims, play the fair-use card on the grounds their redistribution of others' copyrighted work is “transformative” – the material is being put to a new use. In one instance, merely changing the context in which a photograph was displayed was deemed to be “transformative,” even though the photo hadn’t actually er, been transformed in any way.

This lenience is good news for people who make money distributing and exhibiting strangers' creative works, and news, without a royalty payment in sight, but not so good for the creative types and journalists who toil away making it.

Fox didn’t challenge TVEyes's search engine functionality, but rather the watch function.

Although the second circuit had cautiously approved Google’s use of snippets in the Google Books case, this time, appeals judges Dennis Jacob, Lewis A. Kaplan, and Jon O. Newman, thought that TVEyes was chancing it a bit – far more than the law allowed for fair use. The work was transformative, but ultimately infringed on Fox News' intellectual property.

Viewing

For example, TVEyes had made an argument that news, which is a collection of facts, isn’t “copyrightable.” Not surprisingly, this didn’t get very far. Nor did the argument that the ten-minute limit on viewing was equivalent to a Google Books snippet, and not harmful to the rights-holder. Ten minutes is longer than most news reports, and clearly “extensive” copying. The clincher was that TVEyes was a for-profit corporation, and its service deprived Fox News of business. The market harm test, enshrined in Berne, is typically persuasive:

“At bottom, TVEyes is unlawfully profiting off the work of others by commercially redistributing all of that work that a viewer wishes to use, without payment or license,” the appeals court concluded.

“TVEyes’s redistribution of Fox’s audiovisual content serves a transformative purpose in that it enables TVEyes’s clients to isolate from the vast corpus of Fox’s content the material that is responsive to their interests, and to access that material in a convenient manner.

"But because that redistribution makes available virtually all of Fox’s copyrighted audiovisual content – including all of the Fox content that TVEyes’s clients wish to see and hear – and because it deprives Fox of revenue that properly belongs to the copyright holder, TVEyes has failed to show that the product it offers to its clients can be justified as a fair use."

Victory lap

“In a sweeping victory for Fox News, the second circuit held on appeal that TVEyes’ use of Fox News’ video clips was not a fair use," the network's lawyers Dale Cendali, of Kirkland & Ellis LLP, said. You can read FNC's coverage of the case here, and it's surprisingly good.

The EFF, of course, described it as a "terrible" decision, arguing this week's ruling is likely to derail TVEyes' operations. ®