Big test case coming on digital copyright

An important case due to reach the Supreme Court soon seeks to test the legality of collecting a massive database of recorded TV and radio programming and selling access to it to news outlets, scholars and other researches, government agencies, and the police.  If granted review by the Justices, it would be a significant test in the Digital Age of the legal theory that excuses copying that otherwise could violate copyright law.

At issue in the developing case of TVEyes, Inc., v. Fox News Network is the definition of “fair use” – a legal defense that copyright law provides when the owner of rights to an original creation claims infringement by unauthorized copying.  While the Supreme Court will have the option of denying review of the case, the lower appeals courts appear to be divided on that question, and such a dispute often attracts the interest of the Justices.

The Supreme Court last ruled on the “fair use” concept a quarter-century ago, when it gave those who parody a popular song the protection of that legal defense.  That case cleared a parody by the band, 2 Live Crew, of Roy Orbison’s ballad, “Oh, Pretty Woman.”

TVEyes, based in Fairfield, Conn., describes itself as a search engine for broadcasting.  The for-profit company monitors some 1,400 TV and radio channels and makes available – for a monthly fee of about $500 – ten-minute clips of what it has gathered.   It does not sell its service to consumers for personal use.  It tells the users that they are to do only internal research on the material, and warns them that – while they may download and save the clips – they may run into legal trouble if they reproduce them for others’ access.

Under a current schedule, TVEyes is due to file its appeal at the Supreme Court on September 12, as a challenge to a ruling by the U.S. Court of Appeals for the Second Circuit that the copying of Fox News programming was illegal infringement, not protected by the “fair use” concept.  (The Second Circuit Court is widely considered the key lower court on copyright issues because New York is in its jurisdiction and so much of publishing is centered there.)

In its ruling against TVEyes, the Second Circuit Court agreed that the company’s database did make a new use of the Fox programs’ content by enabling its clients to easily sort through the vast amount of what Fox has broadcast, and pick out the items of interest to those clients.

But, in the end, it ruled for Fox because the court concluded that TVEyes had taken “virtually all of Fox’s copyrighted audiovisual content” and thus deprived Fox of a chance to earn money by its own re-distribution of that content.

In taking its case on to the Supreme Court, TVEyes is expected to argue, among other points, that the Second Circuit Court’s ruling will give Fox legal control over a market that should be open to critics of Fox’s programming, thus preempting the opportunity to analyze how that network performs as a public resource.   Fox News itself, TVEyes is expected to suggest, would not itself engage in critiquing its own content, so in essence, its copyright ownership would effectively close down that market of critical commentary.

Under federal copyright law, the concept of “fair use” is designed to encourage others to take original works and then transform them in order to more widely circulate the ideas or concepts involved, to broaden the spread of knowledge.  It exists mainly to encourage such wider dissemination by news organizations and educational institutions, while still protecting the exclusive rights to exploit the copyrighted work in its original form.

A typical use these days of TVEyes’ database by a news organization customer, for example, would be to search for a clip of President Trump saying something on a “Fox and Friends” broadcast in order to bring that back into news coverage, to refresh it for the news audience.

Copyright law spells out four factors that courts are to weigh when considering whether the copying of a protected work amounts to a “fair use.”  The four are: whether the copying entity used it to create something new that “transforms” the original; the nature of the copyrighted work in its original form; how much of that original form the copying entity used, and the impact of the use on the potential market for the copyright owner’s further exploitation of the work.

It was mainly on that fourth factor – the impact of TVEyes’ redistribution on Fox’s chances of earning revenues by its own re-distribution of the original programming – that mainly led the Second Circuit Court to rule for Fox.

Fox News sued after it had told TVEyes to stop copying its programming.  Its lawsuit focused on 19 copyrighted Fox broadcasts.

When the case reached the Second Circuit Court, Fox did not pursue its claim that TVEyes’ search function was an infringement; instead, it focused its legal attack on the redistribution of its copyrighted content to commercial users – in short, the “watch” function that enables the users to view the ten-minute clips.

By including the “watch” function, the Second Circuit opinion said, TVEyes’ package of services lost its claim to the protection of the “fair use” defense.   It blocked the Connecticut company from continuing the package.

The Fox News programs remain available on TVEyes’ database for only 32 days and are then deleted.   TVEyes’ service, the Second Circuit Court concluded, gives its customers the opportunity to download and archive virtually all of Fox News’ programming in that 32-day period without paying any royalties for such exploitation, and thus takes away Fox’s option to make money through its own re-distribution.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.