Fox News Scores Appellate Court Win in TVEyes Copyright Case

Court reverses earlier decision that media-monitoring service constitutes fair use

Last Updated: February 27, 2018 @ 12:23 PM

Fox News scored a legal victory against video service TVEyes on Tuesday, with an appellate court reversing a court’s earlier decision that TVEyes’ service constituted fair use.

“TVEyes’ re-distribution of Fox’s content serves a transformative purpose insofar as it enables TVEyes’ clients to isolate from the vast corpus of Fox’s content the material that is responsive to their interests, and to access that material in a convenient manner. But because that re-distribution makes available to TVEyes clients virtually all of Fox’s copyrighted content that the clients wish to see and hear, and because it deprives Fox of revenue that properly belongs to the copyright holder, TVEyes has failed to show that the product it offers to its clients can be justified as a fair use,” a decision handed down in the second circuit court of appeals reads. “Accordingly, we reverse this order of the district court to the extent that it found fair use. Our holding does not encompass the copying of Fox’s closed-captioned test into a text-searchable database, which Fox does not challenge on appeal. We affirm the district court’s order to the extent that it denied TVEyes’ request for additional relief. We also remand for entry of a revised injunction.”

In a statement Tuesday, Fox News’ outside lead counsel Dale Cendali of Kirkland & Ellis LLP called the decision a “sweeping victory.”

“This is a significant win in the field of fair use law because to the extent that transformativeness has become the litmus test of fair use for some courts, the court in this case, similar to the Harry Potter Lexicon case, held that even where a use may be modestly transformative, it is critical for a court to evaluate all of the fair use factors,” Cendall said. “In evaluating the remaining fair use factors, the Second Circuit held that TVEyes’ distribution of Fox’s audio visual content would ultimately be harmful to the media company’s business because it is being deprived of various forms of licensing revenue.”

TVEyes, meanwhile, said that it is “disappointed by the decision,” but is “in the process of evaluating the decision and considering our options.”

“While we are disappointed by the decision, we continue to believe that TVEyes offers an irreplaceable public service to its customers, including elected officials and government agencies, the military, law enforcement and the news media itself, within the bounds of the law,” TVEyes’ statement reads. “We are in the process of evaluating the decision and considering our options.”

Fox News Network filed suit in July 2013, contending that TVEyes, which monitors and records television content and allows subscribers to obtain video clips of the content, violates Fox’s copyright and New York’s unfair competition and misappropriation laws.

However, in September 2014, a district court  decided that declared that TVEyes’ service — which is used by the White House, Congress, the Associated Press, MSNBC, Reuters and others — does more than repackage Fox’s original material.

“TV Eyes’ search results show the combination of visual images and text in a medium that raises the commentator to have the qualities of news itself,” the judge said.

“By indexing and excerpting all content appearing in television, every hour of the day and every day of the week, month and year, TVEyes provides a service that no content provider provides,” the judge said. “Subscribers to TVEyes gain access not only to the news that is presented, but to the presentations themselves, as colored, processed, and criticized by commentators, and as abridged, modified and enlarged by news broadcasts.”

Pamela Chelin contributed to this report.