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Media Giants Press 2nd Circ. to Shutter TVEyes

A coalition of major entertainment companies urged the Second Circuit on Wednesday to rule that media-monitoring service TVEyes is “well beyond the bounds of fair use.”

The amicus brief, from the Copyright Alliance, 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 permitted to operate legally under the fair use doctrine.

The Alliance — made up of the major movie and television studios, record labels and other media companies, such as Time Warner, Disney and Sony Pictures — claims it is a “a staunch supporter of fair use principles." But it says TVEyes’ service goes well beyond what the doctrine is designed to allow.

“If fair use principles are misconstrued to allow a commercial entity to simply redistribute and commercially exploit the copyrighted works of others on a significant scale — as the district court allowed TVEyes to do here — it will stifle the very creativity that the Copyright Act is intended to foster,” the Alliance wrote.

The entertainment companies painted TVEyes as particularly threatening because of its timing  — arriving just as TV networks themselves are transitioning to online formats.

“The market for the distribution of television content is rapidly evolving, with rightsholders … increasingly relying on online and digital redistribution of their content,” the brief said. “Permitting TVEyes and its ilk to usurp and interfere with those markets will result in harmful consequences to the television industry, and to licensees who actually obtain the proper authorizations from rightsholders.”

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 with certain features, like ones that let users download the clips or email them to friends.

Each side has appealed those rulings to the Second Circuit.

The case has drawn high-profile amici on both sides. Before the Alliance brief filed Wednesday, Google Inc. and Microsoft Inc. both filed briefs in favor of TVEyes.

The Copyright Alliance is represented by Barry I. Slotnick and Jonathan N. Strauss of Loeb & Loeb 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.