TVEyes’ Service is Unfair to Broadcasters, 2nd Circ. Told

Cable and broadcasting trade associations on Monday joined in on the closely watched Second Circuit copyright fight between media monitoring service TVEyes Inc. and Fox News Network, telling the court that redistributing content without compensation violates the fair use doctrine.

In amicus briefs, the National Association of Broadcasters, the National Cable and Telecommunications Association and a group of 13 intellectual property scholars threw their weight behind Fox, which is asking the Second Circuit to overturn a 2014 ruling that found much of TVEyes’ service — which records live television and turns it into a word searchable database — is legal under the fair use doctrine.

But according to these groups, the unlicensed distribution of content is hurting the broadcasting industry.

“TVEyes’ online reproduction, display and delivery of broadcasters’ copyrighted works represent just the sort of infringing conduct against which the Copyright Act was intended to protect,” the NAB said in its brief, which, along with the others, was dated June 22 and filed in the Second Circuit on Monday.

The NAB, a trade group made up of radio and television stations and broadcasting networks, told the Second Circuit that TVEyes undercuts broadcasters’ ability to secure a fair return on the “substantial investments” they have made in creating and distributing copyrighted video content.

Rather than directing subscribers to licensed sources to view content found on its database, the media monitoring service transmits the video clips, which is “expansive, unlicensed copying and redistribution of broadcast stations’ copyrighted content,” the trade group said.

The NCTA also challenged TVEyes’ content sharing, saying that the distribution of content that offers no compensation to copyright holders, the program networks or their licensed distributors “would increasingly undermine the ecosystem that has supported the vast and ever-growing amount of content available to consumers today.”

The 13 scholars, who teach and research copyright, media and First Amendment law, expressed their concern about the lower court’s “eagerness to rewrite copyright law.

“The lower court’s overly broad application of the doctrine of fair use, which dramatically expands the doctrine, will undermine the incentives and ability of creators from a variety of disciplines to benefit from the distribution and commercialization of their work in digital form,” the scholars said.

A representative for Fox News told Law360 on Tuesday that the network is “gratified” to see support for its position.

“While this case has important implications for Fox and its businesses, the numerous amici supporting Fox show that the effects of TVEyes’ unbridled distribution of television content as unlimited, lengthy, high-definition video harms all corners of the television industry and beyond,” the representative said.

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 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 recently declared to be fair use. But Fox News sued for copyright infringement in 2013, saying that 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 Television and others threw their weight behind Fox News earlier this month, comparing TVEyes to so-called clipping services that have been declared illegal.

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 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 on Tuesday.

A spokesman for the NCTA on Tuesday said that the brief speaks for itself.

Representatives for the other parties did not immediately respond to requests for comment on Tuesday.

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 National Association of Broadcasters is represented by its counsel Rick Kaplan and Joseph P. Palmore, and Paul Goldstein and James R. Sigel of Morrison & Foerster LLP.

The NCTA is represented by its counsel Michael S. Schooler.

The scholars are represented by Sandra Aistars of Arts and Entertainment Advocacy Clinic, and Jennifer Allen Sands Atkins of Cloudigy Law PLLC.

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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