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TVEyes Blinded by 2nd Circuit Decision
February 27, 2018

By Michael F. Snyder and Kelly L. Hoffman

Propagating news program clips online, such as on social media including Instagram and Twitter, just became more difficult.

On Tuesday, February 27, 2018, the United States Court of Appeals for the Second Circuit handed down a decision holding that TVEyes, a search engine for video clips obtained through media-monitoring, was in violation of copyright law for unlawfully re-distributing the copyrighted work of others.[1] The decision reversed a 2014 holding by the District Court that the service was protected by the doctrine of fair use and as a result, has the potential to significantly impact projects or services that involve indexing or compiling copyrighted works.

TVEyes is a web-based service that records television around the clock and then turns it into a web-searchable database of clips that range in length from two to ten minutes. The service records content from approximately 1,400 channels. A user can search the database for specific terms to see how they have recently been used in TV and radio, and how often. Users also have the ability to organize their search results by day to track the frequency with which the term is used by each station and they can obtain transcripts and video clips that contain their designated search terms. Subscribers include public relations professionals, journalists, politicians, the White House and the United States Army.[2]

The dispute began in 2013 when Fox sued TVEyes for copyright infringement, comparing TVEyes to an illegal video-on-demand service. Both sides moved for summary judgment with TVEyes conceding that it had engaged in unauthorized copying and distribution, but claiming a defense of fair use. After an analysis of TVEye’s service, using the four factors provided in Section 107 of the Copyright Act, the District Court agreed.

Under the first factor, the purpose and character of the use, the court concluded that TVEye’s use of the recorded content to create a searchable database was transformative, despite also being commercial in nature. The court also found that the transformative use of content negated a finding against fair use under the second factor, the nature of the copyrighted work. The third factor, the amount and substantiality of the copied work, was troublesome for TVEyes as it was undisputed that Fox’s content was copied in its entirety, but the court warned against relying on a “crude quantitative comparison.” Finally, after examining the use’s effect on the potential market value of the work, the court concluded that the fair use doctrine applied as TVEye’s service was not available to the public. Overall, the District Court concluded that the service aided an important public interest, and the use was sufficiently transformative to qualify for the fair use defense.[3] Fox appealed to the Second Circuit, which sided with the media behemoth on Tuesday.

On appeal, the court acknowledged the usefulness of the service provided by TVEyes, but stated that it was “not justifiable as a fair use.” Most notably, the court reiterated that TVEyes was unlawfully profiting by redistributing the work of others without payment or license. Since the clips compiled by TVEyes provided either the majority or the gist of the information the subscriber was seeking, they were able to circumvent both paying Fox licensing fees and viewing the advertisements provided in the uncompressed content. Although both valuable and transformative, TVEyes “usurped a function for which Fox is entitled to demand compensation.” After similarly weighing the same Section 107 factors as the District Court, the Second Circuit overturned the decision.[4]

As the deciding factor for the District Court relied heavily on the transformative traits of TVEye’s content, this reversal does not bode well for others who may assume they are protected by the doctrine of fair use for similar compilations. In the meantime, TVEyes will likely be on the lookout for a new, more fair use-minded approach that will withstand similar legal scrutiny.

[1] Bill Donahue, Siding With Fox, 2nd Circ. Says TVEyes Is Not Fair Use (February 27, 2018)

[2] In Depth – Fox News Network, LLC v. TVEyes, Inc. (September 9, 2014)

[3] Fox News Network, LLC v. TVEyes, Inc., 43 F. Supp. 3d 379

[4] Fox News Network LLC v. TVEyes Inc., case number 15-3885, at the U.S. Court of Appeals for the Second Circuit.