CNN, Hearst Television and others threw their weight behind Fox News on Friday in the network’s effort to shut down media-monitoring service TVEyes, comparing the startup to so-called “clipping services” that have been declared illegal.
The amicus brief from CNN, Hearst and several others came as Fox News is asking the Second Circuit to overturn a 2014 ruling that much of TVEyes’ service — which records live television and turns it into a word-searchable database — is legal under the fair use doctrine.
TVEyes has painted itself as analogous to Google’s book search engine, which the Second Circuit ruled was legal last fall, but Friday’s brief says the more appropriate comparison is Meltwater – a company that a New York federal judge ruled in 2013 was not protected by fair use when it reprinted Associated Press articles without permission.
“Like Meltwater before it, TVEyes tries to avoid the clear precedent of clipping-service cases by cloaking itself in the mantle of Google and other online search engines, describing itself as a research tool,” Hearst wrote.
“But as the court noted in [the Meltwater ruling], adopting technology used by search engines does not by itself make one a search engine for purposes of a fair-use argument,” the stations wrote.
For Fox News to win the case, it’ll need the Second Circuit to lean far more on Meltwater than on Google Books.
In the latter, a Second Circuit panel court glowingly endorsed a search engine that copied millions of copyrighted works without permission; in the former, a federal judge blasted the copying of original news content as a threat to democracy.
"Investigating and writing about newsworthy events occurring around the globe is an expensive undertaking, and enforcement of the copyright laws permits AP to earn the revenue that underwrites that work," the judge said at the time. "Permitting Meltwater to take the fruit of AP’s labor for its own profit, without compensating AP, injures AP’s ability to perform this essential function of democracy."
Also joining CNN and Hearst on the brief were TV production company ITV America and television station operator Gray Television Group Inc.
TVEyes provides around-the-clock television recording, which it then indexes and turns into a word-searchable database of clips. Its subscribers reportedly include the White House, dozens of members of Congress, the Associated Press and Goldman Sachs.
The company believed that all that copying and sharing and databasing was protected by the fair use doctrine, much like Google’s mass digitization of books, which the Second Circuit recently declared to be fair use. But Fox News sued for copyright infringement in 2013, saying the service was more like an illegal on-demand service.
The judge overseeing the case, U.S. District Judge Alvin K. Hellerstein, largely ruled in TVEyes’ favor in 2014, finding that the core service of turning television broadcasts into a searchable database was a transformative fair use of the footage. But he then issued a second ruling in August 2015 that said TVEyes had gone too far with certain features, such as allowing users to download the clips or email them to friends.
Following those rulings, both sides appealed to the Second Circuit.
CNN, Hearst and the other amici are represented by Linda Jane Steinman, Elizabeth McNamara and Alison Schary of Davis Wright Tremaine LLP
Fox News is represented by Dale M. Cendali, Joshua L. Simmons and Johanna Schmitt of Kirkland & Ellis LLP.
TVEyes is represented by Todd Anten, Kathleen Sullivan and Jessica Rose of Quinn Emanuel Urquhart & Sullivan LLP.
The case is Fox News Network, LLC v. TVEyes Inc., case number 15-3885, at the U.S. Court of Appeals for the Second Circuit.
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