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Why Second Circuit Found No Fair Use in 'TVEyes' Case
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 32 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, among other things, 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. 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 Southern District of New York on the parties' cross motions for summary judgment was whether TVEyes's service constituted fair use.
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