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Walking the Fine Line of Fair Use: The Second Circuit's Decision in <i>Fox News v. TVEyes</i>
When the police release an important public safety message, how do they monitor the reporting of that message on TV news broadcasts? Or if a manufacturer issues a product recall, how can it view all news broadcasts commenting on the recall and track the geographic locations in which recall coverage has aired? Many people likely assume that the answer is the Internet. But they would be wrong: only a small fraction of television news broadcasts are made available online. For a party to monitor and view all news coverage of an event, it would essentially have to watch and record all news broadcasts 24 hours a day, seven days a week.
That's exactly what media-monitoring service TVEyes did. Specifically, TVNews recorded the broadcasts of 1,400 television and radio stations full-time and then compiled that content into a searchable database using closed captioning and speech-to-text technology. TVEyes then offered its subscribers — which were only businesses and not the general public — the ability to search all news broadcasts in the last thirty-two days via keyword to identify and view relevant 10-minute news clips referencing that keyword. Through the TVEyes service, subscribers could not only view the clips, they could also see the market viewership of each clip based on Nielson ratings, generate maps plotting the geographic locations where the content had been viewed, and create graphics showing the frequency of the viewings. In addition, subscribers could archive, edit, download, and even email the clips. Among TVEyes's subscribers were the White House, the United States Army and Marines, 100 current members of Congress, the Department of Defense, the Associated Press, the American Red Cross, AARP, Reuters, various police departments, and the Association of Trial Lawyers.
Fox News filed suit against TVEyes, claiming copyright infringement of 19 of its hour-long programs and alleging that TVEyes would divert Fox News's viewership and its ability to license its news clips to third parties such as Yahoo!, Hulu and YouTube. There was no dispute that TVEyes had copied Fox News's content. Instead, the issue before the S.D.N.Y. on the parties' cross motions for summary judgment was whether TVEyes's service constituted fair use.
The District Court's Decision
The district court actually issued two decisions ruling on the parties' cross motions for summary judgment. In the first decision, 43 F. Supp. 3d 379, the court held that TVEyes's use of Fox News's content was fair use. In setting the stage for its decision, the court discussed the many advantages of the TVEyes service and its use by many governmental agencies. The court offered the example that once a police station has issued a public safety message, “the only way for the police department to know how every station is constantly reporting the situation would be to have an individual watch every station that broadcast news for twenty-four hours a day taking notes on each station's simultaneous coverage.”
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