Fox News Network, LLC v. TVEyes, Inc.
883 F.3d 169 (2018)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A for-profit service that copies and re-distributes substantial portions of copyrighted audiovisual content is not a fair use, even if it has a transformative search component, when it makes available the core expressive value of the work and usurps a potential licensing market for the copyright holder.
Facts:
- TVEyes, Inc., a for-profit media company, operated a subscription service for approximately $500 per month.
- The service continuously recorded the entire broadcast day of over 1,400 television channels.
- TVEyes created a text-searchable database of this content using closed-caption text and speech-to-text technology.
- Subscribers, which included businesses, political organizations, and government entities, could search the database for specific keywords.
- Upon searching, subscribers could view, download, email, and archive unaltered ten-minute video clips of the broadcast content that contained their search term.
- TVEyes provided this service using Fox News Network, LLC's copyrighted content without a license or permission from Fox.
- Prior to litigation, TVEyes unsuccessfully approached Fox to procure a license, and when Fox later demanded TVEyes stop using its programming, TVEyes refused.
Procedural Posture:
- Fox News Network, LLC sued TVEyes, Inc. in the U.S. District Court for the Southern District of New York, alleging copyright infringement.
- On summary judgment, the district court issued a mixed ruling, finding that some functions of TVEyes's service (like keyword search and viewing clips) constituted fair use, while others (like downloading and emailing clips) did not.
- The district court found TVEyes liable for infringement for the non-fair use functions and issued a permanent injunction limiting those specific features.
- The district court's decision was appealed to the U.S. Court of Appeals for the Second Circuit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a commercial service that records entire television broadcasts and allows paying subscribers to search for and view ten-minute clips of unaltered, copyrighted programming constitute a fair use under 17 U.S.C. § 107 of the Copyright Act?
Opinions:
Majority - Jacobs, Circuit Judge
No, TVEyes's service does not constitute a fair use. Although the service has a transformative purpose in making television content searchable, it ultimately fails the fair use analysis because it makes available substantial and qualitatively important portions of the original work and harms the copyright holder's potential market. Applying the four-factor test, the court found: (1) The purpose and character of the use was only modestly transformative because it merely repackaged unaltered content, and its commercial nature weighed against fair use. (2) The nature of the copyrighted work (news) was neutral. (3) The amount and substantiality used weighed heavily against fair use because the ten-minute clips often provided users with the entire, desired news segment, unlike the limited 'snippets' in 'Google Books'. (4) The effect on the market, the most important factor, also weighed heavily against fair use because TVEyes usurped a valuable potential licensing market that rightfully belongs to Fox. The court concluded that the balance of factors strongly favored Fox.
Concurring - Kaplan, District Judge
I concur only in the judgment that the service is not a fair use. I do not join the majority's conclusion that the 'Watch function' is 'somewhat transformative.' This characterization is unnecessary dicta, as the court found against fair use regardless. More importantly, I doubt it is correct. A service that merely enhances the efficiency or convenience of delivering unaltered copies of a copyrighted work does not transform it. The Watch function merely repackages and delivers the original content without adding new information, aesthetics, or insights. Precedent from cases like 'Infinity Broadcast Corp. v. Kirkwood' establishes that more convenient delivery is not a transformative purpose, distinguishing it from the highly protected and limited 'snippet' view in 'Google Books'.
Analysis:
This decision significantly clarifies and limits the scope of the 'transformative use' defense in copyright law, particularly in the wake of the expansive ruling in 'Authors Guild v. Google, Inc.' ('Google Books'). It establishes that a secondary use is not saved by a transformative purpose, such as creating a search index, if it also functions as a direct substitute for the original work by providing substantial and valuable portions to consumers. The ruling emphasizes that market harm, specifically the usurpation of potential licensing revenue, remains a critical, and often decisive, factor in the fair use analysis. The case signals to technology companies that they cannot republish significant amounts of copyrighted content without a license, even when bundled with innovative search technology.
