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8/25/2015
Source: Law360
 

TVEyes Downloads Aren't Fair Use, Judge Says

A New York federal judge weighed in Tuesday on the remaining claims in Fox News Network's copyright lawsuit against media-monitoring Internet service TVEyes Inc., finding that a few of the service's side features are not protected by the fair use doctrine.

TVEyes provides around-the-clock television recording, which it then indexes and turns into a word-searchable database of clips for news organizations, politicians and others. Fox sued the company in 2013, claiming its unauthorized copying of its programming infringed its copyright.

Last September, U.S. District Judge Alvin K. Hellerstein ruled that TVEyes' core index-and-search functions were protected under the fair use doctrine, but said he didn't have enough evidence to immediately weigh in on the legality of features that let subscribers archive, email and download clips, and one that allows them to search for content by date, rather than keyword.

On Tuesday, Judge Hellerstein said the ability to permanently download broadcast content onto a local hard drive, with no watermark or digital rights management software, was not covered by fair use.

“I believe that TVEyes' downloading function goes well beyond TVEyes' transformative services of searching and indexing,” the judge wrote

“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.”

The judge also said TVEyes' feature allowing subscribers to search by time — rather than by keyword — would effectively duplicate, and thus cannibalize, Fox's own presentations of its content.

“The feature is not as much a 'search' tool as a content delivery tool for users who already know what they seek,” the judge wrote. "In such cases, TVEyes is not so transformational, since users should be able to procure the desired clip from Fox News or its licensing agents, albeit for a fee.”

Hellerstein did, however, find TVEyes' archiving features to be fair use, and said the email function would also be protected by the doctrine if certain controls on what could be shared were implemented by the company.

The ruling, which likely sets up a Second Circuit appeal, comes just short of a year after Hellerstein ruled TVEyes to be 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.

The clientele probably didn't hurt: TVEyes subscribers reportedly include the White House, 100 current members of Congress, the Associated Press, city police departments, Goldman Sachs and many others.

On Tuesday, TVEyes founder and CEO David Ives said the company was "pleased that Judge Hellerstein has yet again validated TVEyes’ business model under copyright fair use, and recognized the great value of TVEyes’ service to the public." He would not comment on whether the company would appeal the adverse ruling on the side features.

Fox News is represented by Dale M. Cendali, Joshua L. Simmons, Felicity Sloan Kohn, 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 13-cv-5315, in the U.S. District Court for the Southern District of New York. 

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