Fox News Network fired its opening shot Thursday in a closely watched copyright battle over the legality of media-monitoring service TVEyes, saying the television search engine is “nothing like” Google’s book search service that was declared legal last year.
Fox News is currently appealing to the Second Circuit after a ruling in 2014 that much of TVEyes’ service – which records live television and turns it into a word-searchable database — is permitted to operate legally under the fair use doctrine.
TVEyes has repeatedly been compared to Google Books — the search giant’s service that scanned millions of books without permission and made them word-searchable. It’s a favorable comparison for TVEyes under the current circumstances: The Second Circuit ruled last year that Google Books was protected by fair use, and the U.S. Supreme Court refused to take the case in April.
But on Thursday, in its opening brief to the Second Circuit, Fox News warned the appeals court that TVEyes “is nothing like Google Books.”
“This court found Google’s copying to be fair use only because of numerous protections that ensured that the short, limited snippets assisted in finding content, rather than delivering it,” Fox News wrote. A Google Books search result shows only a page or so of the book at issue.
“[TVEyes] goes beyond finding authorized copies of television content, and instead delivers unlimited, unauthorized, lengthy, seriatim, high-definition video clips to its paying subscribers,” Fox News wrote. “Far from mirroring Google, these clips are a transparent, effective market substitute.”
Differentiating TVEyes from Google Books is pretty much make-or-break for Fox News if it’s going to win the case. The two services are both what is known as “mass digitization” projects, and the Second Circuit gave Google’s a glowing endorsement last year when said the service “augments public knowledge by making available information.”
“TVEyes tries to justify itself by hiding behind the banner of ‘search,’ but the features at issue are for watching, downloading, and redistributing content, not finding authorized sources of it,” Dale M. Cendali, counsel for Fox News, said in a statement Thursday. “This cannot be fair use.”
TVEyes is also fighting its own counter-appeal in the case, challenging the trial judge’s finding that certain aspects of the service weren’t covered by fair use. The company wants the appeals court to rule that its entire service is protected by the doctrine. It filed its own brief in March.
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, Goldman Sachs and many others.
How the case turns out will be closely watched in copyright circles. A strong ruling for TVEyes would be another ringing endorsement for mass digitization projects following the Google Books ruling last year. A ruling for Fox, on the other hand, could establish key limits on what the Google Books ruling allowed.
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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