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11/9/2015
Source: Law360
 

TVEyes Judge Shuts Down Infringing Features

The federal judge overseeing Fox News Network's closely watched copyright case against media-monitoring service TVEyes Inc. issued an order Friday to shut down or restrict certain features that he said violated copyright law.

 TVEyes provides around-the-clock television recording, which it then indexes and turns into a word-searchable database of clips for major news organizations, politicians and others. The company believed all that copying and sharing was protected by the fair use doctrine, but Fox sued for copyright infringement in 2013.

 Though U.S. District Judge Alvin K. Hellerstein ruled last year that the service's core index-and-search functions were indeed fair use, he issued a followup decision in August that a few of the company's features went “well beyond TVEyes'” key, transformative purpose. On Friday, following competing proposals, Judge Hellerstein issued an injunction to shut down, or heavily modify, those illegal features in relation to Fox's copyrighted programming.

 The order banned entirely a feature that allowed users to download clips to their hard drives, as it also did for a search function that allowed users to search by time or network — rather than by substantive keyword. Judge Hellerstein's August ruling said both functions went well beyond fair use.

 The injunction imposed more detailed restrictions on the sharing of Fox News clips. It bars posting them to social media, and it restricts users from emailing them to more than five recipients. It also requires users to post prominent notices that the material is copyrighted.

 Neither side got the exact injunction that they wanted.

 TVEyes, for instance, wanted it to only apply to the 19 clips that formed the basis of Fox's lawsuit, but the judge ruled that it would apply to any Fox footage since the cited clips “were emblematic of all Fox News' content.”

Fox wanted much stricter limits on sharing, like expiration dates for clips and limits on how many times email recipients could watch a given clip. TVEyes actually signed off on those rules, but Judge Hellerstein said they unnecessary to keep the service within the boundaries of fair use.

“Fox News proposes limitations that would eviscerate the usefulness of the service provided by TVEyes, and would not serve the purpose of copyright law to promote the Progress of Science and useful arts,” the judge wrote.

 The parties will continue to litigate the case to determine damages that TVEyes owes Fox News.

 The injunction comes a little over a year after Hellerstein ruled that TVEyes core functionality — recording and indexing TV news to make it searchable — was a highly transformative use of Fox's copyrighted content, providing a huge public benefit that wouldn't exist otherwise.

“Without TVEyes, there is no other way to sift through more than 27,000 hours of programming broadcast on television daily, most of which is not available online or anywhere else, to track and discover information,” Judge Hellerstein wrote.

 But the judge also purposefully punted on downloading and other features, and in August, he said they were not covered by fair use.

“Allowing [subscribers] also to download unlimited clips to keep forever and distribute freely may be an attractive feature but it is not essential,” Hellerstein wrote. “Downloading also is not sufficiently related to the functions that make TVEyes valuable to the public, and poses undue danger to content-owners' copyrights.”

Both sides can appeal the judge's rulings to the Second Circuit once a final judgment has been issued.

 Fox News is represented by Dale M. Cendali, Joshua L. Simmons and Johanna Schmitt of Kirkland & Ellis LLP.

 TVEyes was represented by Todd Steven Anten, Jessica Anne Rose and Andrew H. Schapiro of Quinn Emanuel Urquhart & Sullivan LLP.

 The case is Fox News Network LLC v. TVEyes Inc., case number 1:13-cv-05315, in the U.S. District Court for the Southern District of New York.

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