In the News Law360

Fox News Doubles Down Against TVEyes in Fair Use Case

Fox News Network LLC slammed television search engine TVEyes Inc.’s contention that its media-monitoring service is legal under the fair use doctrine as a research tool, telling the Second Circuit on Wednesday that TVEyes had conceded the service's commercial use.

Fox News is currently challenging a 2014 New York federal court 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. TVEyes has hit back at Fox, telling the appellate panel that the lower court correctly found the service’s viewing and archiving functions, which enable subscribers to view short television clips for research, are protected fair uses.

But according to Fox News’ reply brief, which was dated Aug. 29 and filed Wednesday, TVEyes concedes “but improperly downplays” that the service's use is commercial.

“TVEyes admits television news’ public benefits,” Fox News said. “Yet, instead of supporting the journalists TVEyes claims are its primary customers (they are not), it invites this court to distort copyright law and this case’s facts to reach a result that is anything but fair.”

TVEyes provides around-the-clock television recording, which the company then indexes and turns into a word searchable database of clips. The media-monitoring service told the Second Circuit in August that “it is undisputed” that TVEyes subscriber bases consist “overwhelmingly” of journalists, government actors and private businesses.

According to TVEyes, Fox News does not challenge that the media-monitoring service engages in fair use when it captures the text of Fox’s television broadcasts to include in a comprehensive database, but only when audiovisual components are used for research purposes. Yet audiovisual content is needed to “conduct meaningful research on Fox broadcasts,” TVEyes said.

Fox News pushed back Wednesday, arguing that TVEyes’ response “is merely smoke and mirrors, obscuring a simple case with legal and factual mumbo-jumbo.”

TVEyes itself does not perform research, Fox News said. Rather, the search engine “just provides copies of content” and cannot rely on its subscribers’ uses, according to the response brief.

“TVEyes continues to mischaracterize who its subscribers are and how they use the content-delivery features,” Fox News said.

The media-monitoring service believes that all that copying and sharing and databasing is protected by the fair use doctrine, much like Google’s mass digitization of books, which the Second Circuit declared to be fair use in 2015. But Fox News sued for copyright infringement in 2013, saying that the service was more like an illegal on-demand service.

The judge overseeing Fox News' 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 Television Inc. and others threw their weight behind Fox News in June, comparing TVEyes to so-called clipping services that have been declared illegal.

Cable and broadcasting trade associations later that month also voiced their support for Fox News, telling the Second Circuit that redistributing content without compensation violates the fair use doctrine.

However, TVEyes in March got backing from Google Inc. and Microsoft Inc., which pressed the Second Circuit to “affirm” that search providers are protected by fair use.

In its amicus brief, Google urged the appeals court to rule that important fair use precedents for search engines set over the years — many won by Google itself — should apply equally in the context of video search.

Counsel for TVEyes declined to comment, and representatives for Fox News did not respond to a request for comment Friday.

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.