Enviros weren’t the only ones disappointed by the Supreme Court today. TV Eyes lost their bid to protect their business model, which is … selling verbatim transcriptions of broadcast news married to the video. The refusal to grant cert puts an end to the argument that fair use can mean 100% of copyrighted material when it comes to influential media:
The U.S. Supreme Court won’t be reviewing a big copyright lawsuit brought by Fox News against TVEyes, a media monitoring services that stores a massive amount of television news programming for use by researchers. The decision to deny review leaves in place an opinion from a lower appellate circuit that affirmed TVEyes’ copyright liability for making verbatim reproduction of Fox News’ content.
The development is a blow for TVEyes, which has become a critical tool for journalists to keep tabs on what is said on the air by Fox News commentators. That features has become especially important during the administration of President Donald Trump, who is often influenced by Fox News. TVEyes is also used by PR folks to track when their clients are mentioned in the news.
In February, the Second Circuit Court of Appeals agreed with Fox News that a service that provided its video and audio to customers — almost in real time — and then allowed clips to be shared through email and social media violates its copyrights.
It’s considered fair use to copy small portions of broadcasts, especially for critiques and analysis. TV Eyes argued that Fox News has become so influential on government that fair use applies to their entire product. The 2nd Circuit disagreed, ruling that TV Eyes was profiting at the expense of the copyright holder in a reversal of the district court:
“TVEyes’s re‐distribution of Fox’s audiovisual content serves a transformative purpose in that it enables TVEyes’s 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,” he writes. “But because that re‐distribution makes available virtually all of Fox’s copyrighted audiovisual content — including all of the Fox content that TVEyes’s 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.” …
“The third factor strongly favors Fox because the Watch function allows TVEyes’s clients to see and hear virtually all of the Fox programming that they wish,” writes Jacobs. “And the fourth factor favors Fox as well because TVEyes has usurped a function for which Fox is entitled to demand compensation under a licensing agreement.”
Jacobs adds, “At bottom, TVEyes is unlawfully profiting off the work of others by commercially re‐distributing all of that work that a viewer wishes to use, without payment or license. Having weighed the required factors, we conclude that the balance strongly favors Fox and defeats the defense of fair use.”
How much profit did TV Eyes make? Tough to say, but they were charging clients a whopping $500 a month, or about ten times what everyone else pays for basic cable access to watch Fox News. Granted, the transcription service is likely costly for TV Eyes, but that still doesn’t grant them the right to resell what isn’t theirs in the first place.
Furthermore, their argument — at least as relayed by the Hollywood Reporter — is exceedingly strange. In their application for certiorari, they argued that “Fox is a player of outsized relevance to national political debate,” one which has been reluctant to license such activity as theirs when it comes to critical analysis:
The petition states, “Examples abound of the feedback loop between Fox and the President,” citing numerous news articles about how Trump’s actions echo what’s being broadcast on Fox News.
“Fox is a player of outsized relevance to national political debate,” writes TVEyes’ attorneys led by Kathleen Sullivan. “If the President tweets about an issue that aired on Fox, then Fox itself has become the news and an important subject for research, analysis and criticism that is enabled by TVEyes’s comprehensive database. But under the court of appeals’ market-harm ruling, Fox may withhold meaningful access to research of its broadcast content or license it only on prohibitive terms.”
In other words, Fox’ content might be so valuable that, er … they’ll charge up the wazoo for it? And they might not want to license it to their critics? Get. Out. Under this logic, the strength of a copyright exists in inverse proportion to its value. (Insert your least favorite media outlet here for the punchline: “That might make _____ happy!”)
Copyright strength is not limited by the commercial value of the product, but claiming such a huge value of Fox’ product argues against stealing it more than it argues for it. Following this logic would put every media outlet of any size at risk of losing their copyright depending on which party is in power and how well they cover any particular administration. The real wonder is how this argument succeeded at the district court in the first place.
Critics of Fox can still make fair use of their output, of course, by using Fox’ search tools and selecting out limited parts of their video. This ruling doesn’t disturb other fair-use issues, but instead rules for private-property rights. It might be helpful, however, if Fox took a hint and provided better search and transcription services on their own.