Fox News Content Used by TVEyes is Fair Use

TVEyes provides a service that records all content broadcast by over 1,400 television and radio stations. It then compiles the content in a searchable database for subscribers including the United States Army, the White House, members of Congress and police departments across the country. TVEyes is a for-profit company with revenue over $8 million. TVEyes is only available to businesses, not the general public. It has approximately 2,200 subscribers who pay $500 per month. Subscribers are required to sign a contract limiting the use of downloaded clips to internal purposes. Before each download, TVEyes’ website states that content may be used only for internal review, analysis or research.

Fox News Network, LLC sued TVEyes, Inc. for copyright infringement, misappropriation and unfair competition.  In its decision the court provided the following example of the service TVEyes performs. If one performed an internet search for a recent amber alert for a missing child, it would not yield the same results as would a TVEyes search result. The internet search would provide only the segments of content that the television networks made available. TVEyes will index, organize and present the content on each of the 1,400 stations. Judge Hellerstein stated, “Without TVEyes, the police department could not monitor the coverage of the event in order to ensure the news coverage is factually correct and that the public is correctly informed.” Fox News filed the lawsuit because it was concerned that TVEyes will divert viewers from its news programs, commentary programs and websites. Fox News publishes about 16% of its television broadcast content online.

To assess fair use, the court addressed the following factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

The Court focused on the first factor stating, “[TVEyes] creates a database of otherwise unavailable content…The Internet does not and cannot house the entirety of this content because Fox News, for example, does not provide all of its content online. Thus, without TVEyes, this information cannot otherwise be gathered and searched. That, in and of itself, makes TVEyes’ purpose transformative…”

The court found that TVEyes’ copying of Fox News’ broadcast content for indexing and clipping services constitutes fair use; however, it did not decide the issue of fair use for the full extent of TVEyes’ service, due to insufficient evidence. The court also found that the misappropriation claims were preempted by the copyright claim.