Just two months ago, Google scored a major victory for fair use after a decade-long fight over the legality of its digital library of copyrighted books. We talked about it before, so we won’t go into too much detail now. The main thing to understand from the case is that, after the required four-factor test analysis, the court determined Google’s storing of books in a searchable database without the authors’ permission was transformative (this is another term we’ve discussed quite a bit, but in case you’ve forgotten, it essentially means “new and different from the original.”); users can use the service to research the presence of specific words or phrases—very different from the original purpose of the books—and it only lets users see snippets, even though Google scanned full-length titles. Transformative uses are crucial to favorable fair use findings.
Now we may already be learning where some of the boundaries of fair use lie with databases that store the copyrighted works of others, thanks to a case involving Fox News and media-monitoring service TVEyes. TVEyes records content from more than 1,400 TV and radio stations 24/7, which paying subscribers (media companies, government bodies, political candidates, corporations, nonprofits, etc.) can search on the website, using keywords, for example, and then watch the clips. Fox sued the service for infringement in 2013, but TVEyes asserted fair use as a defense. In a motion for summary judgment from September 2014, TVEyes said its database was transformative because it was a research tool “to evaluate and criticize broadcast journalism, to misinformation, to evaluate national security risks for U.S. troops, to track compliance with financial market regulations—none of which implicates the original purpose of the broadcast.”
The district court judge on the case ruled last year that TVEyes’ service was fair use but reserved judgment on some of the website’s features for a later date. Well, when that day came this past August, it didn’t completely work out in TVEyes’ favor. We’ll take each feature in turn, and briefly discuss why the judge ruled in favor of or against TVEyes:
- Archiving: Subscribers can bookmark clips for later use and viewing, even though TVEyes only makes content searchable for 32 days. The court thought this feature was essential to the transformative research function because users would need to come back to clips for reference. Fair use.
- Emailing and sharing: TVEyes subscribers can email the videos to anyone, including non-subscribers. While the court saw the benefit of employees being able to share the content with each other, it also saw how easily this feature could be abused without any restrictions. (Think back to the Google case: Only allowing snippets is a great example of putting a limitation in place to prevent abuse.) Not fair use without safeguards.
- Downloading: Subscribers can download clips onto their computer hard drives. The court didn’t find any transformative use here since transferring the clips permanently to one’s own device didn’t add to the research and analysis function. Basically, the court thought archiving was enough. Not fair use.
- Date-Time Search: Along with keywords, users can search the database using a specific date and time, which is especially helpful in the case of a failed keyword search. The court thought this function wandered into Fox News’ licensing market because utilizing the date-time search meant the subscriber has an idea of what they were looking for, and could go to Fox News and inquire about it. Not fair use.
A permanent injunction order, which would force TVEyes to stop these particular services, was issued last month and set to go into effect on December 14th, but the parties suddenly agreed to have the 2nd U.S. Circuit Court of Appeals review the court’s decision and put the injunction on hold. This is the same appeals court that decided the Google case.
Where creative minds come together
This case may have an effect on how media is analyzed in the future. There’s a really interesting question of whether Fox News is attempting to stifle criticism. Fox News can deny or withdraw a license where a user portrays it in a negative way, for example, and fair use is one of the ways to push back against this. Obviously, preventing or hindering scrutiny of the news is really bad policy.
Stay tuned to The Fried Firm blog for more on this case.
